(2010 01 15) - Post-Conviction Motion Hearing Day 1 PDF

1 STATE OF WISCONSIN : CIRCUIT COURT : MANITOWOC COUNTY
BRANCH 3
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STATE OF WISCONSIN,
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PLAINTIFF, MOTION HEARING
5 DAY 1
vs. Case No. 06 CF 88
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BRENDAN R. DASSEY,
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DEFENDANT.
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DATE: JANUARY 15, 2010
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BEFORE: HON. JEROME L. FOX
11 Circuit Court Judge
12 APPEARANCES:
13 KENNETH R. KRATZ
Special Prosecutor
14 On behalf of the State of Wisconsin.
15 THOMAS FALLON
Special Prosecutor
16 On behalf of the State of Wisconsin.
17 STEVEN DRIZIN
Attorney at Law
18 On behalf of the defendant.
19 ROBERT J. DVORAK
Attorney at Law
21 LAURA H. NIRIDER
Attorney at Law
22 On behalf of the-defendant. .
23 PFER
w
24 he defendant
25
COPY
1 THOMAS F. GERAGHTY
Attorney at Law
3 ALEX HESS
Law Student
5 ADAR CROSLEY
Law Student
7 BRENDAN R. DASSEY
Defendant
8 Appeared in person.
9 'k^'k'k^-k'k'k
10 TRANSCRIPT OF PROCEEDINGS
11 Reported by Jennifer K. Hau, RPR
12 Official Court Reporter
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1 I N D E X
2 WITNESSES PAGE
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KENNETH KRATZ
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Direct Examination by ATTORNEY DRIZIN 12-104
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Cross-Examination by ATTORNEY FALLON 104-108
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Redirect Examination by ATTORNEY DRIZIN 108-112
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8 LEN KACHINSKY
9 Direct Examination by ATTORNEY DVORAK 112-267
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11 (Exhibits were marked prior to the motion hearing.)
12 EXHIBITS MARKED MOVED ADMITTED
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1 THE COURT: This is State of Wisconsin v.
2 Brendan Dassey. It's Case No. 2006 CF 88. It's
3 also Court of Appeals No. 2007 XX 1073.
4 Appearances. Starting with the prosecution.
5 ATTORNEY FALLON: Morning, Your Honor.
6 May it please the Court, State appears by Special
7 Prosecutors Tom Fallon from the Attorney
8 General's Office and Ken Kratz from the Calumet
9 County District Attorney's Office.
10 ATTORNEY DRIZIN: Good morning, Your
11 Honor. Is it okay if I introduce my team?
12 . THE COURT: Go ahead.
13 ATTORNEY DRIZIN: Okay. For the record,
14 on behalf of Mr. Brendan Dassey, I'm Steve
15 Drizin.
16 To my left is Laura Nirider,
17 N-i-r-i-d-e-r.
18 Sitting at counsel table assisting with
19 the technology today is Alex Hess. He is a
20 third-year law student at Northwestern University
21 School of Law.
22 In the first row is Mr. Joshua Tepfer
23 T-e-p-f-e-r. He is a law professor at

24 Northwestern Law School.
25 Sitting next to Mr. Tepfer is Ms. Adar,

1 A-d-a-r, Crosley. She is a third-year law
2 student at Northwestern University.
3 To her right is Mr. Thomas Geraghty. He
4 is a law professor and a director of the Bluhm
5 Legal Clinic at Northwestern Law School.
6 And behind me is Mr. Robert Dvorak who
7 is co-counsel with me on this case.
8 THE COURT: All right. Thank you. I'm
9 going to give a short introduction to the hearing
10 here today.
11 Uh, this is a case in which the
12 defendant, Brendan Dassey, was charged on
13 March 3, 2006 and before I forget, the record
14 will also reflect that Mr. Dassey is here
15 personally was charged on March 3, 2006, with
16 being party to the crimes of first degree
17 intentional homicide, first degree sexual
18 assault, and mutilating a corpse.
19 The victim in all three charges was
20 Teresa Halbach, who was murdered on August on
21 October 30, 2005.
22 Mr. Dassey excuse me was tried in
23 Manitowoc County by a jury chosen in Dane County.
24 The jury returned guilty verdicts to all three
25 charges on April 27 or April 25, 2007.

1 On August 2, 2007, this Court sentenced
2 Mr. Dassey on the intentional homicide conviction
3 to life in prison with the possibility of release
4 to extended supervision on November 1, 2048.
5 Additional concurrent sentences were
6 given for the other two convictions.
7 The defendant, through his counsel,
8 filed, on August 25, 2009, a motion under Section
9 809.30 of the Wisconsin Statutes seeking
10 post-conviction relief.
11 Specifically, Mr. Dassey is seeking a
12 new trial. He alleges he is entitled to this
13 because his trial counsel and his counsel, who
14 represented him immediately before trial counsel
15 was appointed, were ineffective in their
16 representation of him.
17 He also requests a new trial in the
18 interest of justice because he alleges that the
19 real controversy was not fully tried and his
20 conviction represented a miscarriage of justice.
21 To prove ineffective assistance of
22 counsel, a defendant must show deficient
23 performance and prejudice resulting from that
24 deficient performance. A hearing is required and
25 that is what we will be starting here today.

1 In Wisconsin, this hearing is also is
2 often called a Ma.chn.er hearing because part of
3 its origin lies in a case entitled State of
4 Wisconsin v. Machner at 92 Wis. 2d 797.
5 Now, Mr. Drizin, have I correctly
6 summarized what relief your client is seeking?
7 There's there 's nothing else that you have in
8 your motion?
9 ATTORNEY DRIZIN: I believe so. We
10 are we are seeking two forms of relief. A new
11 motion to suppress Mr. Dassey's statements and a
12 new trial.
13 Urn, and the only other thing I will say
14 is, is that we believe there are two standards
15 operating in this case to judge the
16 ineffectiveness of Mr. Kachinsky's conduct, and
17 those include the Strickland standard, which you
18 articulated, the prejudice standard, and a
19 different standard that governs, urn, conduct by
20 an attorney when they are in a a conflict of
21 interest and there's a breach of a duty of
22 loyalty, which we've labeled the adverse effect
23 standard.
24
25 proceed?
preliminary motion but we're prepared.
ATTORNEY FALLON: And just so the record
is clear, we take issue as to whether or not
there is a bifurcated standard here and whether
it applies .in this particular context. Not the
existence of it but whether it applies here.
THE COURT: I understand. Go ahead.
Motion.
ATTORNEY DRIZIN: I'd I'd have
Mr. Dvorak argue this initial motion, Judge.
THE COURT: Well, before we do that, maybe
we should -- and maybe I should have done this
before. But who's going to be doing what here
today?
ATTORNEY DRIZIN: Uh, we're going to be
examining separate witnesses. It depends on
whether or not the witnesses who we subpoenaed
show up.
Mr. Kachinsky was subpoenaed to be here
today. He has, to the best of my knowledge, not
appeared yet. Urn, that witness is going to be
examined by Mr. Dvorak.
I'm going to be examining, urn,
Mr. Kratz, and Mr. Geraghty's going to be

1 examining Mr. Fassbender and Mr. Wiegert, if we
2 get that far.
3 THE COURT: All right. Mr. Dvorak, your
4 motion?
5 ATTORNEY DVORAK: Judge, it was just
6 a a a motion I think that was brought
7 earlier to exclude witnesses. And and there
8 was, in my understanding, some argument by the
9 State that, um, somehow they their view of
10 themselves as being in a rebuttal posture, uh,
11 and I guess I'm not sure that I understand what
12 the argument is,
13 But we're asking that there be the
14 standard order to exclude witnesses and that they
15 not be allowed to discuss their testimony.
16 THE COURT: Thats fine. I -- I think
17 this what Mr. Dvorak is alluding to was a
18 conference that was held in chambers, I think, on
19 the afternoon of the 12th, Tuesday of this week, in
20 which we discussed this. The Court said that it
21 would sequester or separate witnesses.
22 Uh, Mr. Kratz suggested that since his
23 case was a rebuttal case, although the witnesses
24 that we were talking about were Mr. Wiegert and
25 Mr. Fassbender, both of whom I understand are

1 going to be called by the defense in any case.
2 Is that so we'll have them sequestered.
3 ATTORNEY FALLON: I I do have one
4 request for one exemption under that order. It
5 would be Investigator Skorlinski, um, who
6 assisted us in conducting some of the interviews
7 in preparation for these proceedings. Um, he's
8 not available today because he's still in another
9 trial in Marinette County so he will not be
10 available until next week in any event.
11 So we would ask for an exception under
12 9-0-6-1-5 for him to assist us in presenting, um,
13 information in this case, particularly for
14 purposes of conducting cross-examination.
15 THE COURT: Any objection to that?
16 ATTORNEY DRIZIN: Not at all, Judge.
17 THE COURT: All right. '
18 ATTORNEY DRIZIN: And we have one
19 request for an exception, and and it's only
20 because her testimony is going to be very narrow
21 and really not focused very much on the issues in
22 this case, and that's that Brendan's mother be
23 allowed to remain in the room during the course
24 of this hearing.
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ATTORNEY FALLON: Urn, I would object to
her presence during the testimony of only two
witnesses, and that would be Fassbender and
Wiegert. Absent that, she can stay for the rest
of the hearing,
THE COURT: All right.
ATTORNEY DRIZIN: I don't have a problem
with that.
THE COURT: With that qualification, we'll
do it that way. All right. Now are we set?
ATTORNEY DRIZIN: We are set, Judge. As
our first witness, the defense calls Kenneth
Kratz.
THE CLERK: Please raise your right hand.
KENNETH KRATZ,
called as a witness herein, having been first duly
sworn, was examined and testified as follows:
THE CLERK: Please be seated. State your
name and spell your last name for the record.
THE WITNESS: Kenneth Kratz, K-r-a-t-z. .
ATTORNEY DRIZIN: Judge, just a quick
question. Urn, would you prefer that I stand up
to address the witness? Does it matter? The
microphone's here so...

Judge.
DIRECT EXAMINATION
BY ATTORNEY DRIZIN:
Q Mr. Kratz, may may I call you Ken? Or
Mr. Kratz? Or District Attorney Kratz? How
would you like to
A I answer to everything. Ken is fine, Mr. Drizin
Q Okay. Thank you. How long have you been the
district attorney of Calumet County?
A Since 1992.
Q Okay. And how long haveyou been aprosecutor?
A Since 1985.
Q Okay. During thecourse ofyourcareer have you
ever been a criminal defense lawyer?
A No.
Q Okay. Andin the course ofyour career as a
prosecutor its fair to say you've been involved
in a fairly high number of high profile cases?
A Yes.
Q Okay. Wouldyou agree that theStevenAvery and
the Brendan Dassey case, if I can refer to them
together, urn, was the highest profile homicide
case you had ever been involved in as a
prosecutor?
I believe it was the most watched homicide case in
Wisconsin history. So I I suspect that's true.
Okay. Urn, now, I want to begin with your early
involvement in this case. Why was a special
prosecutor needed in the prosecution of Mr. Avery
and Mr. Dassey's case?
Early on in this case, uh, even the morning that the
victim's vehicle had been discovered, the Manitowoc
County Sheriff's Department, with the advice of the
Manitowoc County District Attorney Mr. Rohrer,
realized that there may be a potential conflict
between Manitowoc County and, specifically, Steven
Avery of the Avery family.
Mr. Avery had filed a a civil federal
lawsuit, as I understand, urn, seeking damages
from the county and others.
And the.investigation of Mr. Avery by
that civil defendant in such a potentially high
profile manner in the opinion of the sheriff of
Manitowoc and the opinion of the district
attorney of Manitowoc raised the potential for
a a conflict of interest.
Therefore, even at the investigative
stage of this case they had sought the assistance
of another prosecutor to, urn, step in and handle

1 both the assistance that is often provided to law
2 enforcement at a pre-charging stage, as well as
3 being willing to handle any prosecution that may
4 come out of that case.
5 Teresa Halbach was a young woman who
6 happened to live in Calumet County and so our
7 investigators were already involved in the search
8 efforts for Teresa.
9 We were generally familiar with her, urn,
10 whereabouts on the day of October 31. They had
11 already consulted me. I was assisting, actually,
12 in the missing persons investigation, urn, for the
13 preparation of cell phone subpoenas and the like,
14 whereby we were trying to ascertain her
15 whereabouts. And so I also was familiar with
16 this case.
17 It's also my understanding that
18 Mr. Rohrer, in deciding who to ask be special
19 prosecutor in the case, urn, preferred somebody
20 with a number of years of trial experience, a
21 number of years of assisting law enforcement in
22 major case investigations.
23 And at least in the surrounding counties
24 at that time I was probably one of the most
25 experienced of prosecutors available.

1 So with that long answer it seemed
2 natural for Mr. Rohrer to ask me to assist in
3 this case. He called me directly and I proceeded
4 to the Avery salvage property. I agreed to be
5 named special prosecutor.
6 Q So it would be fair to say that you were involved
7 in this case from the beginning of the missing
8 persons report, and then your involvement in this
9 case grew even more once, um, Teresa Halbach's
10 car was discovered on the Avery property?
11 A Very much so.
12 Q Okay. Um, now, as a special prosecutor, and this
13 is something I need to understand, your role is
14 simply to assume the role that would have been
15 taken by the Manitowoc County prosecutor.
16 Are there any additional duties and
17 responsibilities that you have as a special
18 prosecutor than there would have been for the
19 Manitowoc County prosecutor had there not been
20 this conflict of interest?
21 A No. I think that I think that's fair. There are
22 some logistical nuances with working with other
23 counties and getting bills paid and those kinds of

24 things that I still may have had to do some things
25 through the Manitowoc D.A's Office, but that

1 notwithstanding, you're very much you very much
2 step in the shoes of the D.A. from that home county
3 Q Okay. Now, one of your duties as prosecutor of
4 this case special prosecutor was to review
5 the evidence that was being developed and then
6 ultimately decide whether or not to file charges
7 in this case against Mr. Avery?
8 A Yes. That wasn't my first of -- my first
9 responsibility but, ultimately, a charging decision
10 is what you're talking about, uh, fell squarely on
11 on m e .
12 Q Okay. That's what I wanted to know. Now, at the
13 time that you made a decision to charge Mr. Avery
14 with .the homicide in this case, um, you did not
15 know exactly what had happened to Teresa Halbach
16 prior to the time that her body had been burned;
17 correct?
18 A I think that's fair.
19 Q Okay. And at the time that' you filed criminal
20 charges against Steven Avery, um, for the murder
21 of Teresa Halbach you did not have sufficient
22 evidence at that point in time to support sexual
23 assault charges against Mr. Avery; correct?
24 A That's that's true.
25 Q Okay. You knew that something horrible had

1 happened to her but you didn't know exactly what
2 had happened to her after the time that she went
3 missing and the time that her car was discovered?
4 A Right. Obviously the physical evidence suggested
5 various, urn, theories that included some
6 Q Nothing hard? No nothing hard?
7 A No.
8 Q Okay. And so would it be fair to say that you
9 did not get a narrative of Teresa Halbach's final
10 hours, if you will, until Brendan Dassey gave his
11 statement on March 1?
12 A That was the first individual who was involved in the
13 criminal enterprise to give me a narrative of what
14 had happened.
15 Narrative, you know, can be provided by
16 crime lab personnel, and here's what the physical
17 evidence suggests, and this came first and
18 Q But prior to the -
19 A and
20 Q time prior -
21 THE COURT: Hang on here. One at a
22 time. Finish your answer.
23 THE WITNESS: All right. And so, urn, I
24 had received, urn, a narrative in in that
25 respect from the forensic scientists that were

1 involved.
2 However, from a a purely layperson's
3 standpoint, for lack of a better term, A, this
4 came first and this came second and this came
5 third, I hadn't heard that series of events until
6 after the the 1st of March.
7 Q (By Attorney Drizin) Okay. So you had some
8 evidence. You were getting some reports from,
9 you know, various crime lab people, but there
10 were significant gaps in the narrative that were
11 filled in only when Brendan Dassey's statement
12 was presented to you?
14 Q Okay. Now, on or about March 1, did you actually
15 view Brendan Dassey's statements to the
16 investigators?
17 A Which ones, sir?
18 Q The ones on March 1?
19 A No.
20 Q Okay. Did you did you review the ones in
21 February? 27? 28? Prior to March 1?
22 A I don't recall. I would doubt it. What I can I
23 expand on that?
24 Q Yeah, please.
25 A What I what I would normally do, and because I

1 was involved on, you know, I've got to say a daily
2 basis for the first several months of this case,
3 investigators the co-invest co-leading
4 investigators, Wiegert and Fassbender, would meet
5 with me, would provide me with, really, daily update
6 as to the development of the case.
7 Would ask for my opinion, and not only
8 legal but strategic, on what should happen next,
9 where the investigation should should go next.
10 And it was in that regard that, after
11 the interview of Mr. Dassey on the 27th of
12 February, we had a pretty long meeting about that
13 interview of Mr. Dassey who was, at least
14 represented to me, very much a witness at that
15 time, not a suspect.
16 And that Messrs. Wiegert and Fassbender,
17 urn, still believed that after the 27th of
18 February that Brendan had seen a lot more than he
19 had been willing to disclose.
20 Q So
21 A I can go into why, but but for right now that's -
22 they believed that he knew a lot more than he was
23 saying.
24 Q Okay. This meeting with your investigators,
25 Mr. Wiegert and Mr. Fassbender, did it occur

1 before the Two Rivers interview on the 27th. or
2 after the
3 A After.
4 Q Two Rivers? Okay. Thank you.
5 A And and and probably probably the 28th,
6 Mr. Drizin, because of the, um the number of
7 interviews on the 27th, and and, you know, where,
8 physically, those took, um, I'm sure this happened
9 the next day some time.
10 Q Okay. When was the first time you viewed Brendan
11 Dassey's statement on March 1? Viewed it.
12 A I don't know.
13 Q Would it have been within a few days after
14 announcing the charges against him?
15 A I've got to think it was either on the 2nd, or at
16 least I got a preview of portions of it on the 1st.
17 . Certainly, I viewed it in its entirety before the
18 3rd, before, um, Mr. Dassey was charged.
19 Q Okay. And you didn't have a transcript yet of
20 that interview at the time that you filed charges
21 against Mr. --
22 A No, but I'm
23 Q Dassey?
24 A quite certain I watched it from start to finish,
25 including, as you know, the last couple of hours,

1 perhaps, of virtually nothing happening on the tape,
2 so... But I still watched it all the way through.
3 Q Prior to you filing charges or the or the day
4 after you filed charges?
5 A Oh, no, prior to.
6 Q Okay. Now, when you saw Mr. Dassey's statement
7 for the first time, um, you knew that in your
8 case against Steven Avery you couldn't count on
9 being able to show that confession to Mr, Avery's
10 jury; correct?
11 A Um --
12 Q You couldn't just walk in and press the play
13 button for that statement in Avery's trial?
14 A Yeah. You're you're asking that I I think a
15 lot about a co-defendant's, um, statement and how I
16 might strategically, uh, weave that into Mr. Avery's
17 case.
18 I wouldn't say that was at the forefront
19 of of any decision-making.
20 Um, if you're asking me if I was
21 familiar with the law of co-defendant's
22 statements, the necessity of some kind of
23 immunity, the necessity of some kind of plea
24 deal, the necessity of thinking ten steps, ahead
25 in this case, uh, I probably was cognizant of

1 of all of those things. That's what a prosecutor
2 does .
3 But on the 3rd, certainly, um, my focus
4 was on, um, choosing charges against Brendan
5 Dassey that were supported not just by his
6 statement but by the corroborative physical
7 evidence that we had at the time.
8 Q But at some point prior to the trial of Mr. Avery
9 you were thinking about the evidence you had
10 obtained against Mr. Avery and you realized, for
11 the reasons you discussed, that you could not use
12 that statement without immunity, some kind of
13 plea discussions, some kind of other activity on
14 your part? You couldn't just play that tape in
15 the
16 A Something
17 Q Steven Avery
18 A pretrial would have to happen to play that tape.
19 Q Thank you. Okay. Now, did Mr. Dassey's
20 statement enable you to amend the charges against
21 Steven Avery?
22 A Yes.
23 Q Okay. And after Mr. Dassey's statement, how did
24 you amend those charges?
25 A Are you talking about Mr. Avery's case now?

1 Q Yes.
2 A I I added charges of sexual assault, um,
3 kidnapping, I believe, and something else.
4 Q Okay.
5 A There was a a sixth charge. And then I should
6 know this, but but I don't know what the sixth
7 charge was. I'm sorry.
8 Q It's been a long time. I don't expect you to
9 know everything about this. Okay.
10 Prior to Brendan Dassey's case, or,
11 let's say, prior to your involvement in Steven
12 Avery's case, had you ever met Len Kachinsky?
13 A Yes.
14 Q Okay. What was your relationship with him?
15 A Len was a defense attorney in the Appleton area. Uh,
16 strictly a professional relationship. Len and I have
17 never seen each other socially, um, unlike some other
18 attorneys in town that I do have closer personal
19 relationships with.
20 I did not have that kind of a
21 relationship with Mr. Kachinsky. So it was
22 purely professional, and I I think, um I
23 think always prosecutor/defense attorney.
24 We some some defense lawyers will
25 do Guardian ad Litem work or other work that I

will do, and we're aligned in interest on a case,
2 but Mr. Kachinsky and I were, professionally at
3 least, always in a adversarial posture.
4 Okay. Um, just a brief geography lesson.
5 Appleton is in Calumet County?
6 A The south side of the city of Appleton is in Calumet.
7 Q Okay.
8 A Appleton's in three different counties.
9 Q Okay. So had you ever tried any cases with
10 Mr. Kachinsky?
11 A I believe I have.
12 Q Those cases, did they go to trial actually?
13 A Not sure.
14 Q Okay. Have you ever entered plea agreements,
15 prior to the Avery case and the Dassey case, with
16 Mr. Kachinsky?
17 A Most certainly.
18 Q Would it be fair to say that many more of the
19 cases you were involved in with Mr. Kachinsky
20 resulted in plea deals as opposed to trials?
21 A Many more of the cases with every defense attorney
22 ends up in a plea deal.
23 Q I understand that. But with Mr. Kachinsky, in

24 particular, that would still be the same answer?
25 A Yes.
1 Q Okay. Now, Mr. Kachinsky was appointed to
2 represent Brendan Dassey in early March of 2006;
3 correct?
4 A After yes. After Mr. Sczygelski withdrew from the
5 case.
6 Q Okay. And shortly after Mr. Kachinsky began
7 was appointed to represent Mr. Dassey, he' began
8 making public comments to the press, um, almost
9 from the minute he was appointed to this case.
10 Would you agree with that?
11 A I understand that he answered some questions to the
12 press. I don't know at which, um or what
13 Mr. Kachinsky's role was in offering statements
14 instead of being responsive to questions, but perhaps
15 it doesn't make any difference.
16 Statements were made by Mr. Kachinsky
17 about not only interestingly, not only the
18 procedural posture of the case one might expect
19 an attorney to to talk about, Mr. Kachinsky
20 seemed somewhat more willing to discuss either
21 metal matters of trial strategy or what he
22 believed may happen in the case. A predictive
23 kind of kind of statement.
24 Q And some of the things that he was discussing had
25 to do with entering pleas on behalf of Brendan

1 Dassey?
2 A Yes.
3 Q Okay. In your experience as a prosecutor, your
4 years of experience, was that unusual to have a
5 defense attorney that early in the case talking
6 publicly about the possibility of a plea deal for
7 his client?
8 A Yes.
9 Q Okay.
10 A And, in fact, I I -- I should tell you with his
11 with some of the statements that he was sharing
12 and and it's not totally unique for a defense
13 attorney to want to paint his client in a positive
14 light, uh, with the media. Urn, but Mr. Kachinsky
15 seemed to, urn, adopt that role quite quite
16 vigorously.
17 And I will candidly say that in at least
18 one correspondence to Mr. Kachinsky, just out of
19 my professional courtesy to him, I reminded him
20 of his ethical responsibilities as far as contact
21 with the media, what I believed he should and
22 should not be disclosing to the media, and sort
23 of a friendly reminder, lawyer to lawyer, about
24 what his future responsibilities might be.
25 But I don't want to sound I I

1 didn't have an agenda, in doing that. I certainly
2 did as well. I wanted it to stop.
3 Q I hear you. And, you know, just so I'm clear,
4 this is this one instance where you, urn, you
5 know, communicated with him some of your
6 concerns, this was by e-mail in in about April
7 of April 14, I believe
9 Q of2006. So prior to April 14 you made no
10 attempts to contact Mr. Kachinsky concerning his
11 comments about plea deals on behalf of his
12 client?
13 A I don't know if that's true or not, Mr. Drizin. I
14 think what likely would have happened is during our
15 ongoing discussions, unrecorded oral-type discussions
16 about the case, which happens in virtually every
17 criminal prosecution, that topic may have come up.
18 I'm telling you I don't recall it nor do
19 I have a recorded, um, representation of that.
20 Like that e-mail that you're referring to.
21 Q Okay.
22 ATTORNEY DRIZIN: Judge, just one
23 matter, please. Um, we had an order for a motion
24 to exclude witnesses at the beginning that was
25 granted.
1 Mr. Kachinsky is not here today in the
2 courtroom. I just want to clear make clear
3 for the record that I'd like you to extend your
4 order. If Mr. Kachinsky is at home watching this
5 on some television screen, or it's being
6 streamlined, that he is not to be seeing what's
7 happening in this courtroom in any way, shape, or
8 form.
9 THE COURT: All right.
10 ATTORNEY DRIZIN: Thank you.
11 THE COURT: Motion is granted.
12 Q (By Attorney Drizin) Okay. Now, um, this is the
13 first time we're going to do this, Mr. Kratz, so
14 I would like you to turn to tab number 310. And
15 I will get that for you right now. It is in
16 binder number five, I believe.
17 A I think I have it here. This looks like the Health
18 Care Bill.
19 Q It does.
20 THE COURT: Let's keep politics out of
21 this.
22 ATTORNEY KRATZ: Except I've read those,
23 Judge, so thats the difference.
24 ATTORNEY FALLON: Which one, Counsel?
25 THE WITNESS: Three-ten?

1 ATTORNEY DRIZIN: Three-ten.
2 THE WITNESS: All right. I found it.
3 Q (By Attorney Drizin) Okay. Um, on March 7,
4 2006, Mr. Kratz, or Ken, um, Mr. Kachinsky and
5 Mr. Sczygelski appeared together on NBC local
6 NBC TV-26 um, and criticized you for the
7 amount of detail that you released to the public
8 in your Complaint. Do you recall that interview?
9 A No.
10 Q Okay. Um, would reading a summary of that
11 interview refresh your recollection?
12 A No.
13 Q How do you know if you haven't read the summary?
14 A Because I'm I'm sure I don't recall Mr. Kachinsky
15 or Mr., um, Sczygelski being critical of the amount
16 of detail that was found in a Criminal Complaint.
17 That's something that I would have remembered and
18 would be very unusual.
19 But, um, I can assure you, as I sit
20 here, that I wasn't aware of the criticism, at
21 least from Mr. Kachinsky and from Mr. Sczygelski,
22 as to content in the Criminal Complaint.
23 Q Okay. This is a multi-page exhibit. If you
24 wouldn't mind turning to the third page of this
25 exhibit, Mr. Kratz.

1 At the bottom it, says "Len Kachinsky,
2 Dassey's attorney." And there's a quote
3 attributed to him. Do you see that?
4 A I don't. Um, there's a a bunch of different page
5 numbers and so if you see at the very bottom of the
6 page
7 ATTORNEY DRIZIN: May I approach the
8 witness ?
9 THE COURT: Sure. It's the third page one.
10 THE WITNESS: The third page one. Okay.
11 This is more like that Bill than I thought,
12 actually.
13 Q (By Attorney Drizin) Have you had an opportunity
14 to read the comment attributed to Mr. Kachinsky
15 there?
16 A That the last comment, "We have --

17 Q Beginning with
18 A a
19 Q "We have a16-year-old
20 COURT REPORTER: One at a time, please.
21 Q (By Attorney Drizin) The one beginning with, "We

22 have a 16-year-old."
23 A I see that, yes.
24 Q Do you recall at the time of March 7, or shortly

25 thereafter, hearing Mr. Kachinsky speak publicly
1 and saying:
2 "We have a 16-year-old who, while
3 morally and legally responsible, was heavily
4 influenced by someone that can only be described
5 as something close to evil incarnate."
6 Do you recall that?
7 A No.
8 Q Okay. Do you recall comments like that that he
9 was making in this general timeframe?
10 A No.
11 Q Okay. Had you heard him say publicly that he
12 his client was morally and legally responsible,
13 would you have spoken to him about it?
14 A Probably not. I think that's a at least a
15 legally responsible, I think, is a an obvious
16 statement of of the law in Wisconsin.
17 As far as morally, urn, that might be his
18 opinion. But that wouldn't have been the kind of
19 egregious use of his position as advocate for his
20 client that I would have taken the unusual step
21 to contact him about.
22 Q You didn't see this comment as a red flag that
23 perhaps Mr. Kachinsky was not acting in his
24 client's best interests?
25 A That requires me to comment with my opinion and with

1 my knowledge of Mr. Kachinsky's reputation. If you
2 want me to do that I will. But I I
3 Q I
4 A I I'm not sure that's the that's the
5 question that you really want to ask. I don't want
6 to I don't want to I don't want to offer, kind
7 of sua sponte, my opinion in in in these kinds
8 of of matters. Is there a way, perhaps, you could
9 rephrase that question?
10 Q Urn, I'll rephrase it, but I I think it's
11 pretty clear. What I'm asking you is let
12 me let me ask it this different question,
13 okay?
14 A Did I think he was representing Brendan's interest?
15 Q No, that's not my question.
16 A I suspect it's (unintelligible)
17 THE WITNESS: I'm sorry.
18 THE COURT: Let him finish asking the
19 question before you answer. Don't anticipate.
20 Q (By Attorney Drizin) Would the fact that
21 Mr. Kachinsky had not'yet met Brendan Dassey have
22 influenced your opinion about whether or not this
23 comment, you know, raised a red flag to you about
24 whether he was representing Brendan's best
25 interests?
1 ATTORNEY FALLON: Still calls for
2 speculation.
3 THE COURT: It it does. I'm going to
4 if that's an objection
5 ATTORNEY FALLON: That's an objection.
6 THE COURT: it's sustained.
7 ATTORNEY DRIZIN: Okay.
8 Q (By Attorney Drizin.) At the time that
9 Mr. Kachinsky was making these comments shortly
10 after he was appointed, were you aware of whether
11 or not he met he had met his client?
12 A No.
13 Q Okay. At the time that Mr. Kachinsky was making
14 these comments on March 7, had you approached
15 Mr. Kachinsky in any formal way about striking a
16 plea deal with Brendan Dassey?
17 A I I don't recall. And and the one the one
18 person who is conspicuously absent from this hearing
19 is Mr. Sczygelski, the first lawyer, and I have a
20 understanding or a belief that
21 Q Do you know for a fact whether are you
22 testifying about what your belief is or what you
23 know for a fact?
24 A What I know for a fact.
25 Q Okay.
I know for a fact that Mr. Kachinsky waived the
prelim and he got skewered
That was Mr. Sczygelski.
Mr. Sczygelski waived the prelim and got skewered by
his brethren in the defense bar because of waiving a
prelim in a homicide case.
I have the opinion that was absolutely
the right thing to do with what he had on his
plate, and that Mr. Sczygelski at that time was
of the opinion that somewhere down the road this
case was leading to a plea, not to a trial.
That was in his client's best interest.
And is
We haven't heard from Mr. Sczygelski, and so all of
this this early plea negotiations and the how
inappropriate it might be, we're apparently not going
to hear from Mr. Sczygelski having said that.
You can call him, if you would like.
And we might.
Okay.
Having said that, however, Mr., urn, Kachinsky, taking
the same practical approach with what he knew at the
time, trying to paint Mr. Dassey in an incredibly
difficult set of facts in a positive or neutral light
with not only the media but with me, was going to be
1 an uphill battle.
2 This appeared to me to be the beginning
3 of that process.
4 So to answer the question, I'm not
5 necessarily sure that's an unusual step for a
6 competent defense attorney to take.
7 Q Same day he's been appointed counsel.
8 A Absolutely. Get on it.
9 Q Okay. Um, in can you Imagine a situation
10 where a self-respecting defense attorney would
11 discuss, publicly, a plea deal in a murder case
12 for a client that he believed was innocent?
13 A I don't know how many self-respecting defense
14 attorneys there are, but the ones that you are
15 theoretically talking about, um, don!t walk into a
16 representation thinking whether their client is
17 innocent or or guilty.
18 Q Okay. Can you imagine
19 A In fact, if I can if I a self-respecting
20 defense attorney, uh, whether they're innocent or
21 not, would not be included in the calculus as to
22 whether or not he can achieve a positive disposition
23 for his client.
24 Q My point, Mr. Kratz, here, is that when
25 Mr. Kachinsky was making these comments, he was

1 telegraphing to the world that it was his opinion
2 that his client was guilty; correct?
3 A Well, I I don't I don't know what he's
4 ATTORNEY FALLON: Still specula I'm
5 going to
6 THE WITNESS: telling the world --
1 ATTORNEY FALLON: object to
8 speculation trying to ask Counsel what he thinks
9 was in Mr. Kachinsky's mind at the time he
10 offered those comments.
11 I can come up with three variations
12 right now just thinking in the top of the top
13 of my head, so
14 ATTORNEY DRIZIN I'll with
15 ATTORNEY FALLON I'm going to
16 ATTORNEY DRIZIN I'll with
17 ATTORNEY FALLON object.
18 ATTORNEY DRIZIN I'll withdraw the
19 question.
21 Q (By Attorney Drizin) It would be fair to say,
22 though, Mr. Kratz, that at the time Mr. Kachinsky
23 was making these comments you did not have any
24 kind of a written plea understanding with
25 Mr..Kachinsky?
1 A That's fair.
2 Q Okay. And any discussions with him about pleas
3 would have been at the very preliminary stages?
4 A Absolutely.
5 Q Do you know whether at the time Mr. Kachinsky was
6 making comments to the press about his client's
7 guilt whether he had viewed the statements that
8 his client had made or listened to them, um,
9 prior to making those comments?
10 A I I don't know. And and I'm quite sure I
11 wouldn't have had that conversation with him at that
12 early stage whether or not he had viewed the --
13 the the videotape.
14 The odd thing, or what I like to say,
15 is is the positive thing about my office, the
16 Calumet D.A.'s office, is we provide discovery,
17 which means all the materials that we have, to
18 the defense without a formal request, without
19 them asking for it, and as early in the process
20 as we can.
21 And so I do that for the practical
22 benefit of the potential for timely plea plea
23 discussions or dispositions. And so I don't even
24 know whether Mr. Kachinsky had the DVD at that
25 time.
1 Q You don't know if they had been transcribed yet
2 either; right?
3 A Quite sure had not.
4 Q Right. And this is March 7 we're talking about
5 so, urn, had Mr. Kachinsky even made a formal
6 discovery motion at that point in time?
7 A I don't know. But I just told you he wouldn't have
8 had to.
9 Q Okay. On March 17, Mr. Kachinsky appeared on the
10 Nancy Grace show. Do you recall that 'television
11 appearance?
12 A I do not.
13 Q Okay. Did you know that Mr. Kachinsky was
14 beginning to speak not only to the local press
15 but also the national press about his client?
16 A I don't think so.
17 Q Would that have raised any red flags to you if he
18 was telegraphing to a bigger audience his belief
19 that his client was guilty?
20 ATTORNEY FALLON: I'm going to object'.
21 He's ' he's again asking for the for the
22 opinion of another lawyer on the competence, or
23 the strategy, or the ideas, or the techniques,
24 uh, of the one who was suspected or accused of
25 being ineffective.
1 And that is, urn first of all, it's an
2 improper use of an opinion. It calls for
3 speculation. And, more importantly, that type of
4 testimony is is impermissible in Wisconsin,
5 asking one lawyer to comment on the techniques or
6 strategies of another, in a Machner hearing.
7 And if the Court wants case law on that
8 I*11.be happy to provide it.
9 ATTORNEY DRIZIN: May I respond, please?
10 THE COURT: Go ahead.
11 ATTORNEY DRIZIN: Mr. Kach Mr. Kratz
12 has testified that based on Mr. Kachinsky's
13 comments, his public comments, he felt the need
14 to send him a letter or an e-mail saying, you
15 know, you are, um, violating or approaching
16 violating ethical rules in the model code of
17 ethical rules.
18 So he, himself, began to get concerned
19 about Mr. Kachinsky's comments. I feel I'm
20 entitled to ask him whether the fact that
21 Mr. Kachinsky was going national raised any red
22 flags in that regard in March, not in April, when
23 we're going to get to that discussion.
24 THE COURT: I'm going to sustain the
objection. I this continual asking of

1 Mr. Kratz's opinion of what Mr. Kachinsky was doing
2 at a particular point in time, it seems to me, is
3 is simply going to lead us to nowhere.
4 ATTORNEY DRIZIN: Your Honor, it's it
5 its as you know, it it is our position
6 that Mr. Kachinsky breached his duty of loyalty
7 to Brendan Dassey.
8 It is also our position that Mr. Kratz
9 may have been aware of those breaches and may
10 have, in fact, facilitated some of those breaches
11 and clearly benefited from some of those
12 breaches.
13 I think it1s important that I be able to
14 interview Mr. Kratz or question Mr. Kratz about
15 what he was aware of with regard to these
16 breaches and how they affected his actions at the
17 time.
18 THE COURT: The ruling stands. The
19 objection is sustained. Move on.
21 Q (By Attorney Drizin) How long after you were
22 appointed uh, Mr. Kachinsky was appointed to
23 this case do you remember having serious plea
24 discussions with Mr. Kachinsky with regard to his
25 client?
I remember having plea discussions with Mr. Kachinsky
prior to the May 4 suppression hearing.
Okay.
Um, I don't think I can pinpoint a date, but the May
4 hearing becomes an important pivotal date in our
plea negot discussions, because we both
recognized Mr. Kachinsky and I recognized that
until we received a ruling from the Court there could
not be any serious plea discussions other than just
kind of some general ideas about where this case was
going until both attorneys knew whether the March 1
statement was going to withstand the motion to
suppress.
And so what I'm saying is, even though
we discussed plea negotiations, we had jointly
agreed that after we received the ruling on the
May 4 suppression motion that any plea offers,
any plea discussions, or efforts by Mr. Kachinsky
to, perhaps, paint his client in a positive
light, which I'm sure we'll talk about in a few
minutes, uh, was going to wait until after the
suppression ruling.
Okay. Um, if you will, Mr. Kratz, I would like
you to take a look at Exhibit 343, binder number
five.
J !.,
1 And if if you'd like, feel free to
2 review it because it's it's an e-mail and it
3 may refresh your recollection.
4 A I've reviewed it and I'm now familiar with its
5 contents.
6 Q Okay. Do you recall sending this e-mail to
7 Mr. Kachinsky?
8 A Vaguely. When when I when I read it, urn,
9 clearly it's authored by me, and it sounds like stuff
10 I say to defense attorneys. So, yes, I I
11 recognize it in in that regard.
12 Q Okay. Thank you. Now, at the very end of that
13 e-mail, the second page of that e-mail on Exhibit
14 No. 343, it says page two of two at the top.
15 Urn, there are there is there are a
16 couple paragraphs that talk about plea potential;
17 correct?
18 A There are.
19 Q Okay. And at in those does this in any
20 way, um is this consistent with the testimony
21 that you gave about serious discussions about
22 pleas would have to wait until after the 5-4
23 hearing?
24 A Right. This this is what I would consider the
25 opening salvo, if you will, as far

1 Q .That's the
2 A as
3 Q words I was going to use. The opening salvo.
4 A as far as our plea discussions.
5 Q So this is March 24; correct?
6 A Yes.
7 Q So it'd be fair to say that prior to March 24,
8 2006, you had not made a serious invitation to
9 Mr. Kachinsky to enter a plea on behalf of his
10 client?
11 A Right. And, in fact, the end of this momo uh,
12 memo, urn, makes it clear that any discussion about
13 plea potential will occur after the May 4 motions.
14 Q Okay. You invite him in this memo to talk to you
15 prior to the May 4 motion; correct?
16 A Yes.
17 Q Okay. Was there any discussions with
18 Mr. Kachinsky prior to the May 4 motion about
19 entering a plea on behalf of his client?
20 A I don't recall.
21 Q Okay. Was it yourunderstanding at the time you
22 made this opening salvo that Brendan Dassey was
23 insisting that he was innocent in this case?
24 A No.
25 Q Was it your understanding fromMr. Kachinsky that

1 Brendan Dassey was claiming responsibility for
2 some of the actions in March 1? I mean, some of
3 the actions in connection with the death and
4 disappearance of Teresa Halbach?
5 A I didn't know if I asked Mr. Dassey. I relied upon
6 Mr.
7 Q I know you didn't talk to Mr. Dassey.
8 A Oh, no. I I'm sorry. Mr. Kachinsky. I was
9 relying upon Mr. Dassey's own statements
10 Q Right.
11 A on the 1st. And let's be fair, um, Mr. Dassey was
12 engaging in a number of conversations with his family
13 in which he described various topics. But things
14 like whether Brendan should engage in plea
15 discussions, but, more importantly, whether Brendan

16 should testify as against Uncle Steve, or
17 discussions frequently had with Brendan's most
18 immediate and with his extended family.
19 Q But you knew that he had recanted his confession
20 or his statement of March 1. That his position

21 was that that statement was not true?
22 .A You know, as of the 24th of March, I I'm not sure
23 I did know that.
24 Q Okay. I'd like you to look at page one, if you

25 would, of this document. Just go back a page.
1 And focus on the bottom paragraph, if you will?
2 A Yes.
3 Q In this bottom paragraph you how would you
4 characterize what you said to Mr. Kachinsky in
5 this bottom paragraph? I don't want to do it for
6 you.
7 A This requires that I step back, urn, just very
8 slightly, just just this one step, as to the state
9 of the investigation at this time. The investigation
10 had, although been thorough, uh, was far from being
11 complete.
12 When you look at a serious crime scene,
13 urn, it's important from a law enforcement
14 perspective, and and this wasn't news to me,
15 but you look at what's there and you look at
16 what's not there. You look at what's missing.
17 Q Right.
18 A And in this case there was one item of what we
19 believed was significant physical evidence that had
20 not been recovered. And that was Steven Avery's
21 digital camera.
22 We knew Steven Avery had a digital
23 camera. We knew he had it at his home. We knew
24 from his girlfriend, Jody, that he had taken
25 dig digital photographs, and we suspected, as

1 you think about a case like this, that a digital
2 camera of Mr, Avery might yield some important
3 evidence.
4 Up to this point we were not able to
5 ever find the digital camera. And so my
6 suggestion to Mr. Kachinsky is there are some
7 items of physical evidence that are still missing
8 that haven't been discovered. One of those, and
9 I even identify, the digital camera. That
10 digital photos may exist, and suggested that in a
11 discussion with his client that is exactly the
12 kind of information that the State would find
13 helpful.
14 Now, what am I saying? Um, you don't
15 have to even read between the lines very much to
16 know that should you be interested in painting
17 Mr. Dassey in a positive light with the State in
18 garnering some kind of benefit for your client,
19 the receipt of, or the knowledge of, some of the
20 missing physical evidence may go a long way
21 towards your client demonstrating his
22 helpfulness. Therefore, maybe something that we
23 would consider in discussions about a positive
24 recommendation as to an extended supervision, or
25 parole eligibility date.

2 I'm sure Mr. Kachinsky got exactly what I was
3 saying.
4 Q I understand. You were inviting Mr. Kachinsky to
5 provide you with evidence that was missing from
6 your case against Steven Avery, urn, and you were
7 asking him to see if his client could assist you
8 into obtaining that evidence; correct?
9 A If his client was interested in painting himself in a
10 positive light, this was a way he could do it.
11 That's what I was suggesting. .j
12 Q And on the next page, if you will, it would be I
13 fair to say that another piece of evidence that
14 you asked Mr. Kachinsky to speak to his client

j
15 about was Teresa Halbach's hair, and whether his
16 client could shed any light on where that might :
17 be; correct?
18 A Right. Sexually motivated homicides, especially
19 with, um |
i
20 ATTORNEY DRIZIN: Your Honor, I would
21 ask that the witness just answer that question.
22 He doesn't need to talk about sexually motivated
23 homicides here.
24' THE COURT: Just answer the question.
25 THE WITNESS: I will. Thank you.

1 Q (By Attorney Drizin) You were asking
2 Mr. Kachinsky about whether or not his client
3 could shed some light on where Teresa Dassey's
4 hair might be? Yes or no?
5 A Teresa Halbach. But, yes.
6 Q I apologize for that. Yes. Okay. And, again,
7 this was before serious plea negotiations had
8 begun; correct?
9 A That's right.
10 Q Okay. One more question about that document. In
11 the last paragraph you say, "If you or your
12 client have any further ideas about his case or
13 the eventual Avery trial, I am happy to listen."
14 Do you see that line?
15 A I do.
16 Q By using the word "further" were you suggesting
17 that you had already had discussions with
18 Mr. Kachinsky about information that his client
19 had given him?
20 A No. That further ideas about the case refers to the
21 last several paragraphs where I've just given him my
22 ideas about the case.
23 Q Okay. So it doesn't refer to prior transmission
24 of information from Mr. Kachinsky to you?
25 A Absolutely not.
1 Q Okay. I want you to take a look at, Mr. Kratz,
2 Exhibit No. 344 in binder five.
3 A All right.
4 Q Okay. Have you seen this?
5 A I have.
6 Q And is this the correspondence that you spoke
7 about earlier when you talked about, um, raising
8 some of your concerns with Mr. Kachinsky about
9 his public comments in this case?
10 A Yes, that's one paragraph of it.
11 Q But this is the one you were referring to?
12 A It was.
13 Q Okay. Um, was there anything particular that
14 Mr. Kachinsky was saying publicly that you were
15 responding to? Or were you concerned that he
16 might say something publicly, um, that would
17 violate the ethical rules?
18 A Mr. Kachinsky or I should say I became aware of
19 Mr. Kachinsky developing evidence that was most
20 clearly inadmissible at trial.
21 And when I, as a prosecutor, think of a
22 reason that a defense attorney develops
23 inadmissible or prejudicial evidence that's never
24 going to see the light of trial, I am concerned
25 about it being used for an improper purpose such

1 as public dissemination or prejudicing a a
2 potential jury pool. That is the point of this
3 memo.
4 Q Okay. Now, in that last paragraph you
5 essentially, um, quote from the rules. You
6 you cite the rules to him and you tell him,
7 unless you're going to refer to unless you
8 intend to summarize facts contained in a public
9 document, like a Criminal Complaint, please cease
10 making statements to the media about your client
11 or about this prosecution. Is that fair?
12 A Yes.
13 Q Okay. Now, the statements that we talked about
14 earlier, Mr.. Kachinsky's public statements about
15 the guilt of his client, those were not
16 summarized in a public document; correct?
17 A If you can point to where Mr. Kachinsky calls his
18 client guilty, 1 1d be happy to see that.
19 Q Okay. When he said morally and legally
20 responsible, Brendan is morally and legally
21 responsible, okay, those were not documents that
22 were contained those were not statements that
23 were contained in a public document; correct?
24 A Well, that was right. That that that's half
25 the half the quote.

His previous quote is, if this statement
is to be believed, and there's no defense for it,
then Mr. Kachinsky might be in a position where
it'd be either very difficult or where there's no
defense.
I think that's the quote. But but
the morally and legally responsible, I think was
referring to his age at the time. That a
16-year-old in Wisconsin is legally responsible.
But we we can quibble about that, but
my my my point is, because I am not as
familiar with those previous statements,
certainly didn't watch them on Nancy Grace or any
other kind of nationally televised show, I'm in a
poor position, I guess, to comment as to his
intent about those things.
I'm not asking you to comment about his intent.
What I'm asking you to do is answer a simple
question.
Your question asked if Len said he was guilty. I
don't think that ever happened. If you want to use
that word, Mr. Drizin, show me where he said his
client was guilty.
THE COURT: All right. Enough. Look, if
there's a question, answer it.

1 THE WITNESS: Okay. I did. He's never
2 said his client was guilty.
3 Q (By Attorney Drizin) Okay.
4 A Unless you can point to me.
5 Q But he was making public comments about entering
6 a plea on behalf of his client?
7 A He was.
8 Q And criminal defense attorneys don't generally do
9 that in a homicide case when their clients are
10 innocent; correct?
11 ATTORNEY FALLON: Again
12 THE WITNESS: Assume
13 (Multiple persons talking at once.)
14 ATTORNEY FALLON: I I I have an
15 objection here. One, relevance. Who cares what
16 other defense attorneys do on other cases on
17 in any other world.
18 Two, we're still asking for speculation.
19 And, three, this is pretty far afield of
20 what the issues are in this case.
22 objection.
23 ATTORNEY DRIZIN: Judge, the reason we
24 have to go down this road is 'cause Mr. Kratz is
25 not answering questions that are obvious to

1 everybody.
2 I mean, I'm just if if if he
3 wants to just answer a question that calls for a
4 yes or no answer, that's fine. We won't have to
5 go down this road.
6 But it is it is relevant to know that
7 Mr. Kratz did not make any comments about
8 Mr. Kachinsky's many public comments, none of
9 which referenced, or very few of which
10 referenced, anything that was put in a public
11 document.
12 THE COURT: That's argument.
13 ATTORNEY FALLON: Right.
14 THE COURT: And and just go on with the
15 questions, please?
17 Q (By Attorney Drizin) You mentioned being
18 concerned that Mr. Kachinsky might pollute the
19 jury pool if he talked about some evidence that
20 you had learned he was planning to develop on
21 behalf of Brendan Dassey; correct?
22 A That's right.
23 Q Okay. And my question to you is, were you
24 concerned about Mr. Kachinsky polluting the jury
25 pool based on any of his other comments in this

1 case prior to March 24?
2 A My honest answer is I'm not sure. I mean, I I
3 know that and and and as of April 12, um,
4 this particular species of evidence is problematic
5 that we were referring to in on April 12. I think
6 things prior to that were not as obvious to me or
7 egregious as to what the improper strategic purpose
8 might be for their dissemination.
9 Q Okay. The comments that Mr. Kachinsky was making
10 prior to this e-mail had no potential to harm
11 your case; isn't that correct? Against Steven
12 Avery? Your case against Steven Avery?
13 A Other than garnering sympathy for Mr. Dassey.
14 Setting that aside, which was, I think, an obvious
15 goal, I think that's a fair statement.
16 Q Okay. And this was the first inkling you had
17 that he might be making some public comments that
18 could harm your case against Steven Avery and
19 Brendan Dassey?
20 A Well, that that that might be the use of this
21 inadmissible evidence.
22 Q So you're just being very cautious to make sure
23 that didn't happen; correct?
24 A That's true.
25 Q Okay. I want to focus on the May 4 suppression

1 hearing, okay?
2 A All right.
3 Q Now, at the beginning of the May 4 suppression
4 hearing, Mr. Kachinsky announced that he was not
5 going to raise any questions about the whether
6 or not Brendan Dassey was in police custody for
7 any of his interviews in February and March of
8 2006. Is that a fair statement?
9 A Yeah. I think the the May 4 statement was related
10 to the 27th of February and March 1. But I think
11 that's fair. Other than we didnt find those dates
12 of those statements.
13 Q Okay. And as a lawyer who's practiced.in this
14 area you knew that by conceding the issue of
15 custody he was effectively waiving any potential
16 arguments about the way in which Mr. Wiegert
17 and/or Fassbender read Brendan his Miranda
18 rights?
19 A The sufficiency of the Miranda issue. There's two
20 Q Right.
21 A As as you know, there's two issues at those
22 hearings. Usually Miranda and voluntariness, and
23 Q Right.
24 A so the Miranda, because Iasked, I think, for him
25 to be more specific, State v. Allen and and

1 otherwise. Um, but to narrow the focus if if we
2 can, judges sometimes appreciate that, that that
3 we know what the purpose of that hearing is, and
4 Mr. Kachinsky made it clear that we were talking
5 about voluntariness.
6 Q Okay. But also by conceding custody, if you
7 will by conceding, excuse me, a lack of
8 custody, um, he also was eliminating one factor
9 that is relevant to the question of whether or
10 not the statements are voluntary; correct?
11 A That's true.
12 Q Okay. Now, in your experience isn't it unusual
13 for a lawyer to abandon potential legal arguments
14 that could result in the suppression of a
15 statement made by his client?
16 A No. Not arguments without merit. Happens all the
17 time with good ethical lawyers that don't attempt a
18 shotgun approach. Attempt a rifle approach. Happens
19 all the time.
20 Q But thequestion aboutwhether or notthese
21 arguments had merit is not yours to make. Or
22 Mr. Kachinsky's, necessarily, to make. It's the
23 judge's to make. Would youagree with that?
24 A I would.
25 Q Okay.
1 A You asked my opinion, though. That was my opinion.
2 Q Okay. I understand that was your opinion, okay?
3 Um, and this was a case that was primarily based
4 on the statements that Brendan Dassey had given,
5 at least at this point in time, to police
6 officers in February and March; correct?
7 A Um, no
8 Q Okay. Um
9 A You and, I'm sorry. You wanted yes or no,
10 said, no.
11 Q Okay. The statement there was no physical
12 evidence at this point in time that linked
13 Mr. Dassey to the Avery bedroom; correct?
14 A Correct.
15 Q There was no evidence that you had that
16 physical evidence that proved that Brendan Dassey
17 was in Steven Avery's bedroom; correct?
18 A No, There was noDNA. There was no
19 Q Okay.
20 A things leftbehind that we could
21 Q Right. There was there was no trace of
22 Mr. Dassey's DNA, his fingerprints in or around
23 Teresa Halbach's car that you could you were
24 prepared to use at trial?
25 A Yeah. I think that the the the DNA is a

correct statement. I fm not sure that the fingerprint
analyst at that early stage had compared fingerprints
recovered with with Mr. Dassey. With that caveat,
I think that's true.
And there was no fingerprints or DNA, if you
will, at that point in time that placed Brendan
Dassey in Steven Avery's garage?
Yeah. I think that's true but I don't think we
looked.
Okay. Okay. Now, at the May 4 hearing, okay,
Mr. Kachinsky raised questions about his clients'
suggestibility; is that correct?
That's true.
Okay. Did it surprise, you that Mr. Kachinsky did
not have Brendan Dassey evaluated by a
psychologist prior to the May 4 suppression
hearing?
Not necessarily.
Okay. Urn, in your experience in the context of
Miranda motions or voluntariness hearings, that
is a step that some defense attorneys take;
correct?
When voluntariness if we're talking about such a,
urn, diminished cognitive ability or something like
that, they will call a witness to discuss that.

r
\'
r
On the issue of suggestibility, or what,
2 in its broader scope, is a false confession
3 claim, urn, I hadn't seen that before this case.
4 So quite candidly, urn, if if
5 Mr. Dassey would have been evaluated for that
6 reason, that would have been the first time I saw
7 it.
Q But in terms of evaluating him based for his
intelligence, um, and, um, you know, perhaps any
10 psycho psychological problems he might have
11 that would weigh on these issues, you've seen
12 those kinds of evaluations before at this stage?
14 Q Okay. And it it was not a red flag for you
15 that that was not done in this case?
16 A No. He called the school psychologist.
17 Q Okay. Now, you're also aware that that in
18 your experience that that defense attorneys
19 will hire psychologists to evaluate a a a
20 client on the question of whether that client
21 could knowingly and intelligently waive his
22 Miranda warnings; correct?
23 A I don't think that's true.
24 Q You've never seen that happen at a motion to
25 suppress?
1 A I I think, urn I don't know that there's a test
2 available where a expert witness can walk into court
3 and render an opinion whether or not somebody is
4 capable of waiving Miranda.
5 Q It hasn't
6 A I haven't seen that.
7 Q It hasn't happened in your
8 THE COURT: Hang on a second. The
9 question was: Have you ever seen that?
10 THE WITNESS: No.
11 Q (By Attorney Drizin) Okay. That's all I need to
12 know. So, again, it wasn't a red flag that you
13 didn't see in this case?
14 A No.
15 Q Okay. Now, you knew in this particular case,
16 'cause you had seen the March statement prior to
17 May 4, okay, that after Brendan Dassey confessed
18 to his involvement in Teresa Halbach's murder,
19 that he asked Investigators Wiegert and
20 Fassbender if they would take him back to school?
21 A Yes.
22 Q Okay. In light of that statement didn't the fact
23 that
24 ATTORNEY DRIZIN: I'll strike that,
25 Judge.
1 Q (By Attorney Drizin) You also knew, after
2 viewing the March 1 statements, that there was a
3 third DVD of the March 1 statements; correct?
4 A I (unintelligible) the last couple of hours of
5 of the statement? Is that
6 Q Yeah. I mean, there were there were three
7 DVD'S
8 A Yes.
9 Q that were presented
10 A Yes.
11 Q right? The first two had to do with basically
12 interrogation, or whatever you want to call it,
13 of Mr. Dassey that led to statements that he
14 made, and the third one was was primarily him
15 eating his sandwich, drinking water, um, and the
16 like; correct?
17 A Yes.
18 Q Okay. Third DVD also had on that DVD a snippet
19 that included a conversation between Brendan
20 Dassey and his mother, Barb; correct?
21 A Yes.
22 Q Okay. And that statement, that, um that
23 conversation, there were parts of that
24 conversation during which Mr. Wiegert and
25 Mr. Fassbender were not present?

1 A That's correct.
2 Q Okay. So, um, during the conversation between
3 Mr. between Barb and, um, Brendan, Brendan
4 made some statements to his mom that could be
5 considered at least we consider a
6 recantation; correct?
7 ATTORNEY FALLON: Objection to the
8 phrasing of the question, That could be
9 considered, or we can
10 ATTORNEY DRIZIN: I
11 ATTORNEY FALLON: we can consider
12 - ATTORNEY DRIZIN: I ll rephrase
13 ATTORNEY FALLON: (Unintelligible.)
14 ATTORNEY DRIZIN: I 'll rephrase that
15 question.
17 Q (By Attorney Drizin) He made some statements to
18 his mom about why he'd confessed
19 A Yes.
20 Q to (Unintelligible.)
21 A Yes.
22 Q Wiegert and Fassbender? Yes?
23 A Yes.
24 Q And he also made she his mom asked him,
25 point blank, did you, um did you do the things

1 that you confessed to, or something along the
2 lines, and he said, "Not really." Correct?
3 A I don't recall what his answer was to that.
4 Q Okay. You don't recall what his answer was to
5 that.
6 A I I don't.
7 Q Okay. Um, do you recall that he explained to his
8 mother, when she asked him why he had made those
9 statements, he said, "They got to my head."?
10 A Yes.
11 Q Okay.
12 A Among otherexplanations.
13 Q Okay. And that statement, "They got to my head,"
14 was never introduced by Mr. Kachinsky during the
15 motion to suppress Brendan Dassey's statements,
16 was it?
17 A I don't know if that's true. I my sense of this
18 is that the videotape was reviewed by Judge Fox in
19 its entirety, including Judge Fox prob probably
20 watching Brendan eat a sandwich for two hours,
21 because it was provided pre-hearing so that we
22 wouldn't take however many hours to view it then.
23 So from a presentation, did he present
24 that evidence and was that included in the
25 analysis of Judge Fox, I suspect it was.

1 ATTORNEY FALLON: Your Honor, that if
2 I may imp I I don't know if it's an
3 objection, but its certainly a point of
4 clarification.
5 If the record could reflect, and if you
6 would take judicial notice of the fact, that at
7 that suppression hearing that all those exhibits
8 were marked. You had received them in advance,
9 reviewed them in advance of the hearing, and they
10 were introduced, uh, in toto, for purposes of the
11 hearing and the discussion.
12 So the fact that Counsel may or may not
13 have mentioned them orally wouldn't matter. The
14 fact is that the the entire statement was
15 introduced as evidence in the suppression
16 hearing.
18 Q (By Attorney Drizin) What I'm really getting at,
19 Mr. Kratz, is he did not argue the relevance of
20 that statement to the voluntariness of Brendan's
21 confession to Judge Fox?
22 A I don't recall.
23 Q Okay.
24 ATTORNEY DRIZIN: The record'll speak
25 for itself on that.

1 Q (By Attorney Drizin) Um, and he didn't talk to
2 Barb about that particular statement when he put
3 Barb on the stand?
4 A He didn't question her about that.
5 Q That's right. Okay. Now, after the motion to
6 suppress on May 4, um, the Court set ruling on
7 that motion for May 12; correct?
8 A Yes.
9 Q Okay. Now, you mentioned earlier that between
10 May that after May 4, plea negotiations
11 between you and Mr. Kachinsky began to heat up,
12 if you will? How would you describe the state of
13 plea negotiations in that period between May 4
14 and May 12?
15 A I would say they were certainly beginning, but they
16 were also we also recognized that we had to wait
17 until the ruling on the 12th before any specific
18 offers were going to be made.
19 Q Okay. I'm going to show you what's been marked
20 as document Exhibit No. 338, which is in Exhibit
21 5. Okay? Which is in binder five.
22 Please take your time. It's a short
23 e-mail, but, you know, before I ask you question
24 I'd like to know you finished reviewing it.
25 A All right. I've done that.

1 Q Okay. Um, do you remember receiving this e-mail,
2 Mr. Kratz?
3 A No.
4 Q Okay.
5 A I I know I did, but I I don't have an
6 independent
7 Q Okay.
8 A memory of it. I should say, um, I've reviewed it
9 several times before today. I realize the context in
10 which I had been copied on this this e-mail. Um,
11 but as I sit here right now I don't have a
12 independent recollection of it.
13 Q Do you remember the context in which this
14 discussion was occurring?
15 A Very much.
16 Q Okay. And this is an e-mail dated May 5 of of
17 2006; correct?
18 A Yes.
19 Q And this would have been the day after the motion
20 to suppress had been argued; correct?
21 A Yes.
22 Q But prior to the time that it had been ruled
23 upon?
24 A That's correct.
25 Q Okay. Now, um, in this e-mail, Mr. Kachinsky

1 tells Mr. Wiegert that Michael O'Kelly had
2 developed some information in the course of his
3 investigation that might shed some light on the
4 whereabouts of the Suzuki and Barb's van which
5 may contain useful evidence in this case;
6 correct?
7 A You've omitted the most important line, but, yes,
8 that's correct.
9 Q Urn, what did I omit? I'm sorry.
10 A That he developed it not from his client, Brendan,
11 but from other sources.
12 Q Okay. That's fair. He developed it not from
13 Brendan, but he had developed some evidence that
14 could you lead to he developed some
15 evidence that could lead to information that
16 would be useful to the prosecution in the
17 prosecution of Steven Avery?
19 Q Okay. And by implication that information might
20 also be useful in the prosecution of Brendan
21 Dassey?
22 A That wasn't well, what are you asking me?
23 Q I'm asking you if it is information the
24 information that Mr. Kachinsky had developed
25 could also have been useful in the prosecution of

1 his own client?
2 ATTORNEY FALLON: Objection.
3 Speculation.
4 THE COURT: Overruled.
5 THE WITNESS: I dont think that's
6 necessarily true.
7 Q (By Attorney Drizin) Okay.
8 A I think when we're talking about a murder weapon, um,
9 that clearly is meant to implicate Mr. Avery, not
10 Mr. Dassey.
11 Q Is that what you're talking about here? A murder
12 weapon, Mr. Kratz?
13 A Well, I think that the next e-mail that's, I
14 think, what he's talking about.
15 Q Okay. So and so you were aware at or around
16 this time, maybe not this particular e-mail, that
17 Mr. Kachinsky's investigator had developed
18 evidence that might lead to the discovery of a
19 murder weapon in this case?
20 A I think that's true.
21 Q And that would have been a knife that was used in
22 this crime; correct?
23 A Yes.
24 Q Okay. And Mr. Dassey,in hisstatements, had
25 mentioned the use of a knife?

1 A By himself and his uncle, yes.
2 Q That's correct. So the the discovery of this
3 knife, had it been found, urn, could have been
4 used against Mr. Dassey in his trial?
5 A If he had a stand-alone trial, t h a t that's true,
6 Mr. Drizin.
7 Q Okay. Now, urn, he mentions his investigator,
8 Michael O'Kelly, in thise-mail;correct?
9 A Um-hmm.
10 Q Um, had youmet Mr. O'Kelly prior to this e-mail?
11 A No.
12 Q Okay. Did you know of Mr. O'Kelly's existence
13 prior to this e-mail?
14 A Um, I'm going to say I think so, but -- but here's
15 why. Because I didn't want anything to do with it.
16. You see that the that the e-mail is sent to
17 Mr. Wiegert, sent to my investigator, and some time
18 either just prior to this e-mail or some time very
19 shortly before that I'm sure I told Mr. Kachinsky, if
20 you're going to have an investigator talk about
21 anything investigative in nature, you're going to
22 either do it with Wiegert or Fassbender.
23 I don't get in the middle of

24 investigations. I'm sure as heck not going to
25 make myself a witness to any of this stuff. Deal

1 with my investigators. They'll let me know how
2 it goes after that.
3 So I suspect cc, being courtesy copy,
4 the operative word there is "courtesy," uh, I
5 didn't have any direct contact with Mr. O'Kelly.
6 Q The last thing you wanted was to be cc'd on this
7 e-mail?
8 A That's not necessarily true. I think I think
9 knowing about those investigative efforts is is
10 just fine. I'm not doing any investigation, however.
11 Q Okay. And this evidence that Mr. Kachinsky
12 this murder weapon that Mr. Kachinsky's
13 investigator had a lead on, urn, he believed could
14 be used in connection with a search warrant to go
15 obtain that evidence; correct?
16 A That there could be, urn, probable cause developed.
17 And I suspect from the sources of Mr. O'Kelly, I
18 suspect from whoever had received this information
19 from, but I can envision a scenario whereby a a
20 search warrant with an appropriate affidavit could be
21 drafted, and presented, and granted for this very
22 kind of thing.
23 Q In this e-mail, Mr. Kachinsky tells you that he
24 and Mr. O'Kelly would prefer not to be named in
25 any affidavits that are filed in connection with

1 that search warrant; correct?
2 A That's right.
3 Q He did not want to be known publicly as the
4 source of information that led you to the
5 discovery of the murder weapon?
6 A I don't know what he wanted.
7 Q Okay. What, if anything, did you instruct your
8 investigators about this, um about trying to
9 obtain this evidence?
10 A Handle it. You know, seriously, I'm I'm, um
11 this, as well as any other investigative leads that
12 will lead to the potential discovery of physical
13 evidence, um, it's it's pretty much in in in
14 my line of work, especially in such a import-type
15 profile case, that I'm just going to rely upon their
16 expertise and say go ahead and do it. Handle it.
17 Q Okay. So go and try to find this evidence,
18 essentially, is what you would have said to him?
19 A Handle it. Now, that that may very well mean that
20 the information provided by Mr. O'Kelly or any
21 citizen isn't going to be reliable enough to raise to
22 the level of information to be provided in a
23 affidavit to secure a search warrant. So not
24 necessarily go get this stuff.
25 And and, I mean, I know how I I

1 know how this concludes so I have the benefit
2 of -- of hindsight, or I guess it would be
3 foresight from that point forward, but, anyway,
4 um, it did not conclude with a search warrant.
5 Q Right. Do you know whether or not Mr. Wiegert or
6 Mr. Fassbender did anything to try to secure the
7 Suzuki and Barb's van?
8 A I think they did through consent.
9 Q Through consent. And when they did that, were
10 they able to find the murder weapon in those
11 cars?
12 A I believe they were not.
13 Q Okay. Um, did the fact that Mr. O'Kelly was
14 alerting your investigators to the murder weapon
15 in this case raise any concerns to you about
16 Mr. Kachinsky's any red flags, if you will
17 about Mr. Kachinsky's role in this?
18 ATTORNEY FALLON: Objection. Again,
19 he's asking for the prosecutor's opinion. It's
20 no different than asking for another defense
21 attorney's, if certain conduct would have raised
22 a red flag or would have signified to you that
23 there was some deficient performance afoot here,
24 and that type of testimony is impermissible.
25 The facts are what this hearing is

1 about. Counsel can make his arguments when the
2 facts are in.
3 So I'd object under McDowell. Um, and
4 if the Court wants further information, um the
5 Court of Appeals opinion in State v. McDowell at
6 2003 WI App. 168, page paragraph 62, note 20,
7 um, and there are cases from other jurisdictions
8 talking about impermissible opinion testimony.
10 objection.
12 Q (By Attorney Drizin) Did you take any steps, for
13 example, with the dis disciplinary authorities
14 of the State to reveal what Mr. Kachinsky did or
15 was suggesting in this e-mail at anytime?
16 A No.
17 Q Okay. On Friday, May 12, the Judge issued a
18 ruling in this case; correct?
19 A Yes.
20 Q Okay. And that ruling was a denial of
21 Mr. Kachinsky's motions to suppress Brendan
22 Dassey's statements?
23 A Yes.
24 Q Okay. Now, prior toMay 12, there's some
25 additional correspondence between Mr. O'Kelly and

1 you that you were copied on? Are you aware of
2 that fact?
3 A And I disagree with that characterization. It wasn't
4 with me. I was copied on on things. I don't
5 know
6 Q I'm sorry (unintelligible)
7 A -- that it that it's (unintelligible)
8 Q you were copied on things
9 THE COURT: Here. Again
10 ATTORNEY DRIZIN: I'm sorry.
11 THE COURT: just try not to talk over
12 each other.
13 ATTORNEY DRIZIN: Okay. That's fair.
14 Q (By Attorney Drizin) Um, you were copied on some
15 correspondence between Mr. O'Kelly and one or
16 more of your investigators?
17 A Yes.
18 (Wherein cell phone rings.)
19 Q Thank you. Okay. And that correspondence had to
20 deal with obtaining some materials from
21 Mr. O Kelly that he was planning to take into the
22 detention center on Friday, May 12?
23 A The provision of some discovery. What would commonly
24 be referred to as discovery materials. Photographs,
25 documents, and the like, yes.

1 Q And you told your investigators to handle that as
2 well?
3 A Well, interestingly, that would be handled by my
4 staff
5 Q Okay.
6 A since we at that point were the single point for
7 dissemination of discovery materials. That would
8 have been a direction to ray staff to handle it, to
9 give it to either Mr. Wiegert or Fassbender, and then
10 to forward it to whoever they were going to forward
11 it to.
12 It's the kind of material that
13 Mr. Kachinsky either had or was going to be
14 getting. And so the provision of it didn't
15 necessarily concern me. Again, it's photographs
16 and other things that he either had or would have
17 gotten shortly.
18 Q When you produced this, or your staff produced
19 this material did your staff produce this
20 material to Mr. O'Kelly?
21 A I believe it well, for Investigator Wiegert, yes.
22 Q Okay. Um, when this was produced to Mr. O'Kelly,
23 did you have any idea what Mr. 0'Kelly was
24 planning to do with it on May 12?
25 A No.
1 Q Okay. Did you have any discussions with
2 Mr. Kachinsky about why Mr. O'Kelly needed this
3 material?
4 A I don't think so. I know what was contemplated with
5 my investigators, but I don't know what Mr. Kachinsky
6 planned with his investigator.
7 Q Okay. And you knew, though, that Mr. O'Kelly was
8 planning to at least bring, you know, videotaping
9 equipment into the detention center for this
10 interview?
11 A At that time, candidly, I I did not have a a
12 sense or an idea of that at all. I knew what my guys
13 were going to do.
14 And in in fact, just so our framework
15 is clear, urn, if I have a trained investigator
16 from the Department of Justice and my lead
17 homicide detective, they're going to do their own
18 stuff. They're going to do their own
19 interviewing. They aren't going to rely upon
20 either a private investigator or any other
21 citizen to accomplish that goal.
22 Q My question was: Did you know that he was going
23 to bring in videotaping equipment into the
24 detention center?
25 A No.
1 Q Did you or your staff do anything to facilitate
2 his bringing that equipment into the detention
3 center?
4 A Not to my knowledge, no.
5 Q Okay. And do you know whether or not Mr. Wiegert
6 or Mr. Fassbender would have done anything to
7 facilitate that?
8 A I'm sure they would not have. I know their
9 personalities and their investigative style. They
10 wouldn't have cared what Mr. O'Kelly did.
11 Q Okay. Dm,, now, some time on the evening May 12
12 you received a phone call relating to what had
13 occurred during Mr. O'Kelly's interview of
14 Brendan Dassey on May 12 in the detention center?
15 A I know I received a call indicating that
16 Mr. Fassbender and Mr. Wiegert were authorized to
17 take a statement the next day. I don't know that
18 that was connected to Mr. O'Kelly's own investigative
19 efforts.
20 I knew what we, meaning the State, was
21 being allowed to accomplish and I knew why. I
22 wanted a a second statement from Mr. Dassey
23 the next morning.
24 Q Did you receive a phone call that evening from
25 Mr. Fassbender?
1 A I don't recall, but probably.
2 Q Okay. Did you receive a
3 A Somebody from somebody.
4 Q Right. And did Mr. Fassbender disclose to you
5 anything about the information that Brendan
6 Dassey had given to Michael O'Kelly in that phone
7 call?
8 A No. And I'm sure he didn't know.
9 Q Okay.
10 A And and, if if I may, the only reason I know
11 that is because we've discussed it subsequently. It
12 wasn't part of that conversation.
13 Q Okay. Um, did you speak to Mr. Kachinsky that
14 evening?
15 A Either that afternoon or that evening. I I
16 I I don't know which. We would have, on Friday,
17 after the ruling of Judge Fox and before the
18 interview, uh, on Saturday, um, spoken.
19 Now, there is a possibility that a
20 message was relayed between my investigators
21 and and Mr. Kachinsky, but Mr. Kachinsky, I
22 know, was very much involved in the authorization
23 for the -- the statement.
24 And I know that I insisted upon
25 something in writing from Mr. Kachinsky, perhaps

1 to Mr. Fassbender or Wiegert, um, setting forth
2 not only that Brendan could be interviewed by
3 them the next next morning, because that's
4 unusual, that's an unusual step for a defense
5 attorney to authorize his client to be
6 interviewed on another occasion by the State, but
7 that at that point I insisted that whatever, um,
8 correspondence memorialized that included that
9 Brendan understood he was to receive no
10 compensation for that that decision. Was to
11 receive nothing of value for it.
12 Q Because you didn't know what he was going to say?
13 A Absolutely.
14 Q And so you're not going to make a deal with him
15 until you have any idea what he can offer you;
16 right?
17 A Yes. His utility to me was on Saturday, in theory,
18 going to be determined.
19 Q That's right.Now, just so I'm clear, 'cause
20 I I didn't understand your testimony, you said
21 that you spoke with Mr. Kachinsky some time about
22 the did you speak with Mr. Kachinsky on Friday
23 evening about the terms of his producing Brendan
24 the next day?
25 A And and and, again, it was either directly with

1 him or through my investigator. It was certainly,
2 urn I wanted the correspondence from
3 Mr. Kachinsky
4 Q Right.
5 A and nobody else. And I wanted one of my
6 investigators to receive that. So whether I had that
7 discussion with Mr. Kachinsky, or Mr. Wiegert or
8 Fassbender did, urn, that conversation occurred.
9 Q Okay.You got that e-mail from Mr. Kachinsky;
10 correct?
11 A I did. Either it was a copy of it or directed to me.
12 Q Okay. I'd like to focus on that e-mail now, if
13 it's okay?
14 A Be fine. Whatnumber, please, sir?
15 Q Urn, I'm going to find it for you right now. I
16, think it's tab number 356. Binder five.
17 A All right.
18 Q Would you take your time and and take a look
19 at that, please?
20 A Yes. And and I am very familiar with 356.
21 Q Okay. Just please tell me when you're finished
22 reviewing it.
23 A I'm done.
24 Q Okay. This is an e-mail from Mr. Kachinsky to
25 Mr. Fassbender; correct?

1 A Yes.
2 Q And you were copied on this e-mail?
3 A Yes.
4 Q Okay. And this e-mail reflects, urn, the response
5 of Len Kachinsky to your insistence that he put
6 down the terms of your understanding in writing;
7 correct?
8 A Yes.
9 Q Okay. Now, urn, you received this e-mail
10 9:19 p.m. on Friday, May 12?
11 A That's when my e-mail received it. I'm sure I
12 didn't .
13 Q Okay. Were you out
14 A I I wasn't working at nine o'clock on aFriday
15 Q Do you remember where you were, Mr. Kratz?
16 A I I don't .
17 Q Okay. That's fine. Urn, you weren't waiting by
18 the phone for a phone call from your
19 investigators ?
20 A Probably not.
21 Q Okay. Now, in this e-mail you learned that
22 Mr. Kachinsky was not going to be present at the
23 interview the next day between his client and
24 your investigators; correct?
25 A That's right.
1 Q Okay. And this was rather unusual, as you said,
2 in your experience; correct?
3 A Yes.
4 Q That a defense lawyer would, urn, allow his client
5 to meet with investigators without him being
6 present?
7 A No. The unusual part, what I suggested, was a
8 defense attorney allowing his client to be subjected
9 to a second interview.
10 Q Okay.Without
11 A Whether he'sthere or not.
12 Q Okay.
13 A That's unusual.
14 Q But that's also unusual, you know that makes
15 it even more unusual, the fact that he's not
16 there, urn, during that second interview?
17 A Urn, no. But I but I knew why it had to be done on
18 Saturday, so
19 Q Okay.
20 A I I I I knew theurgency of this statement
21 being taken. But so, in general terms, it is
22 unusual in this context. I knew exactly why
23 Mr. Kachinsky allowed this to happen.
24 Q I understand that. In your experience as a
25 prosecutor have you ever had a situation where a

1 defense attorney has presented a 16-year-old
2 client for an interview with investigators when
3 he was not present?
4 A Clients that are suspects involved in either criminal
5 or delinquency matters, no. I mean, sometimes
6 attorneys are attached to witnesses in cases and they
7 will allow, and have allowed, the interview of
8 their what would be their client in in that
9 setting. But I know you're talking about suspects,
10 and, no, I haven't run across that.
11 Q And this wasn't a suspect. This was a defendant,
12 just to be clear?
13 A It was.
14 Q Okay. Now, urn, in thise-mail, Mr. Kachinsky
15 also memorializes your your agreement that
16 Brendan was not being promised anything in return
17 for whatever he told your investigators; correct?
18 A That's right.
19 Q Okay. You learned inthis e-mail that
20 Mr. O'Kelly would be available to brief your
21 investigators prior to the interview; correct?
22 A I see that in the in in the e-mail. That
23 wasn't part of something I had insisted on. But I
24 see that.
25 Q Right. But you were aware that Mr. O'Kelly was

1 being authorized by Mr. Kachinsky to speak to
2 your investigators about what he had learned that
3 evening?
4 A It's included in the e-mail. The fact that I got it,
5 or it was sent to me, on 9/19, on a Friday, I'm very
6 much doubting the fact that prior to the interview of
7 my investigators occurring on that Saturday morning,
8 that I would have been aware that Mr. O'Kelly was
9 available to be there.
10 Q Okay. So just so I'm clear, you knew there was
11 going to be an interview of Brendan on May 13?
12 A Yes.
13 Q Okay. You knew that Brendan was not going to
14 have Len Kachinsky there?
15 A Yes.
16 Q And you'don't think you knew that Mr. O'Kelly was
17 planning to be there?
18 A I didn't say that. I I said I didn't think that
19 Mr. O'Kelly was going to be available to brief
20 Mr. Fassbender or Wiegert. I'm quite sure I knew
21 Mr. O'Kelly would be there in a representative
22 capacity of Mr. Kachinsky.
23 Q Okay. Thank you. Did you know that do you
24 know whether, in fact, Mr. O'Kelly briefed your
25 investigators?
1 A I i know for a fact he did not.
2 Q Okay.
3 A They didn't want him to. That goes back to their
4 personality. .
5 Q Okay. Um, I'd like to show you a document, if
6 you will, Mr. Kratz, and that document would
7 be um, I'll return to this line of
8 questioning.
9 A All right.
10 Q Um
11 THE COURT: Here. .Let me ask you, how

12 much longer do you envision yourself I realize
13 this is
14 ATTORNEY DRIZIN: Yeah.
15 THE COURT: a bad question ever to
16 ask a lawyer.
17 ATTORNEY DRIZIN: I'd like to take a
18 break now, if that's okay, for five minutes?
19 THE COURT: Let's take 15.
21 (Recess had at 10:25 a.m.)
22 (Reconvened at 10:45 a.m.)
23 THE COURT: Proceed.
24 Q (By Attorney Drizin) Okay, Mr. Kratz, we're on
25 the home stretch here. Um, prior to the break,

1 you testified that you were certain that
2 Mr. Fassbender had not been briefed by
3 Mr, O'Kelly prior to his five thir prior to
4 the 5-13, um, interview of Brendan at the
5 Sheboygan County Jail; is that correct?
6 A Had not been briefed on what occurred on the 12th.
7 Q Okay. And do you have that same degree of
8 certainty with regard to Mr. Fassbender as well?
9 A Um, Mr. Wiegert, yes.
10 Q Okay. So both your investigators, your testimony
11 is, had not received any information from
12 Mr. O'Kelly about what he had learned from
13 Brendan on May 12 prior to the May 13 interview?
14 A That's my understanding.
15 Q Okay.
16 A My understanding is to this day they don't know.
17 Q Okay. And so the e-mail we spoke about in
18 authorizes Mr. O'Kelly to brief, um,
19 Mr. Fassbender and Mr. Wiegert prior to the
20 May 13 interview; correct?
21 A It does.
22 Q Is it also your understanding that Mr. O'Kelly
23 never briefed Mr. Fassbender or Mr. Wiegert on
24 5-13, on May 13, prior to the interview?
25 A Yes.
1 Q Okay. Now, prior to the May 13 interview, did
2 you have any instructions with Mr. Fassbender and
3 Mr. Wiegert about what they should do or what
4 strategies they should take with regard to
5 Mr. Dassey on May 13?
6 A Not strategies. But I certainly, urn, suggested to
7 them what would be of most use to me in a subsequent
8 trial of a co-defendant. What kind of form, if you
9 will, the statement should take that would be most
10 useful in the presentation to a jury.
11 Q And what did you tell them in that regard?
12 A That I wanted not only a
13 ATTORNEY FALLON: I'm going to object to
14 the relevance of this as it pertains to the
15 activities of Counsel Kachinsky.
16 And I would renew my standing objection
17 to the relevance of the inquiry regarding
18 Kachinsky and O'Kelly and the activities leading
19 to the May 13 statement.
20 THE COURT: Respond.
21 ATTORNEY DRIZIN: Mr. during this
22 interview with Brendan Dassey, Investigators
23 Wiegert and Fassbender, urn, not only questioned
24 Brendan about what had happened to Teresa
Halbach, they also persuaded Brendan Dassey to

1 make telephone calls to his mother that evening,
2 um, which were then used against Mr. Dassey at
3 his trial.
4 I want to know to what extent Mr. Kratz
5 knew about that prior to the interview on May 13
6 and whether, in fact, he directed Mr. Wiegert and
7 Mr. Fassbender to do that, um, and thereby
8 profited from the fact that Mr. Kachinsky was not
9 present during that conversation.
10 THE COURT: I'll overrule the objection.
11 You can answer that question.
12 THE WITNESS: Which there were two
13 questions. Which which one should we
14 Q (By Attorney Drizin) The first question.
15 ATTORNEY DRIZIN: Can you read back the
16 question? I'm sorry.
17 (Wherein question is read back by the
18 reporter.)
19 THE WITNESS: I think you're talking
20 about the did I give them any specific
21 instructures (phonetic) as to what would be most
22 helpful at the presentation to a jury.
23 Q (By Attorney Drizin) That's correct.
24 A And my answer is, yes, that Mr. Dassey's March 1
25 statement, although highly inculpatory in nature, in

1 my opinion also kind of goes all over the place.
2 It isnt a chronological, here's what
3 happened first, and next. And if at all
4 possible, I wanted a pristine statement from
5 start to finish as to Mr. Dassey's involvement in
6 the number of crimes that occurred on the 31st.
7 What he knew of them beforehand. What
8 conversations occurred afterwards. And what
9 attempts were engaged in between he, his uncle,
10 uh, and, perhaps, others, to either destroy
11 evidence or to conceal the existence of the
12 crime.
13 Four-hour interviews are difficult to
14 watch by a jury, and if this was able to be
15 provided in a more concise manner, that would be
16 of more utility to me.
17 The reality is that if there was to be
18 an agreement with Mr. Dassey, I needed or wanted
19 to satisfy myself that not only had he provided
20 all of the relevant information that he may have
21 regarding this particular case, but that it would
22 be beneficial to the case of Steven Avery.
23 Quite frankly, the Steven Avery trial
24 could be tried two different ways. It could be
25 either a a very scientific sort of

forensic-laden case, or we could rely upon
Mr. Dassey and be very straight forward with the
co-defendant's participation in what evidence was
presented and what the defense would do in
response to that, um, were all factors that went
into that.
And, quite frankly, having a a more
pristine statement from Mr. Dassey expanded my
options on how I could try the Steven Avery case
depending on future developments.
And so that was my my goal in seeking
that additional statement from Mr. Dassey.
And in your conversations with Mr. Kachinsky, um,
or through your investigators conversations with
Mr. Kachinsky, is that what you expected
Mr. Dassey to deliver to you on May 13?
I expected him to subject himself to an interview by
the investigators and I suspected he, to the best of
his ability, to be truthful and honest. Thats what
I expected.
You were, um, looking, also, for well, were
you also looking to fill in some gaps in
Brendan's story on March 1?
Not necessarily. I don't know that there was
anything missing from Mr. Dassey's March 1 statement.

1 Certainly not to prosecute Mr. Dassey.
2 Um, but the utility, as I mentioned
3 before, if Mr. Dassey was to participate in
4 Mr. Avery's case, um, there was, perhaps, more of
5 Mr. Avery's involvement and more from a planning
6 standpoint, that is, what may have happened
7 before October 31, that I was interested if
8 Mr. Dassey had that information.
9 Q Now, in the March 1 statement, um,. Mr. Dassey's
10 description of his involvement in stabbing
11 Ms. Halbach took place in the bedroom; isn't that
12 correct?
13 A That's what he said, yes.
14 Q Right. Did you instruct your investigators prior
15 to the March 13 May 13 interview to see
16 whether or not Brendan would tell you that that
17 activity took place in the garage?
18 A No.
19 Q Okay. Did Mr. Wiegert and Mr. Fassbender speak
20 to you at anytime during the interrogation?
21 A I I don't believe so. No. I I've I've been
22 trying to reconstruct that and I know they spoke to
23 me afterwards and we spoke before. Um, it'd be
24 highly unusual during the interview process for them
25 to seek any kind of input from me.

1 Q Did you instruct Mr. Wiegert or Mr. Fassbender to
2 ask Brendan to confess again to his mom on by
3 telephone after the May 13 interrogation?
4 A I don't believe so. I can't imagine the only
5 the only way I can answer that is I can't imagine
6 doing that. And,.to the best my recollection, I did
7 not.
8 Q Okay. So to the extent that happened by
9 Mr. Wiegert and Mr. Fassbender, that was
10 something on them?
11 A Yeah. But the but you've got to understand the
12 the dynamic with with Barb Janda, his mother, at
13 that time. Especially brokering a deal with
14 Mr. Kachinsky required Barb to be on board. Urn, up
15 until that point when plea discussions were even
16 contemplated or when I talked to the investigators,
17 um, it wasn't just Brendan that had to sign on, if
18 you will, to the plea agreement, his mother very much
19 had to had to agree to that.
20 You're, I'm sure, familiar with phone
21 calls from other family members saying, "Brendan,
22 don't take any deals in this case."
23 Q Right.
24 A "Don't testify against Steven." And so for that, to
25 be overcome there was going to have to be involvement

1 or acquiescence from Barb.
2 Q But there way there wereways ofgetting Barb
3 on board that did not have to result in the
4 development of additional confessions by her son
5 that could be used against him at trial
6 A Yeah.
7 Q correct?
8 A I don't know why theychoose tohave or or to use
9 that forum in which to to do that. I can tell you
10 that I wanted a plea, if there was going to be one,
11 perhaps even before the 9th.
12 That's why that weekend was so
13 important. That's why getting a statement was so
14 important. Because pretrial motions before
15 Judge Willis were due on the 9th. That was the
16 last day that we could file pretrial motions.
17 So in a very real sense by the 9th of
18 May I had to elect which way I was going to try
19 the Avery case because of what motions I filed.
20 And any use of Brendan Dassey was going
21 to require some kind of notice or motion, if you
22 will, to the court, and that would have to be
23 filed before the 9th.
24 So, urn, I was of the hope that if
25 Brendan was, in fact, interested in a plea, uh,

1 if there was going to be any plea that included
2 his testimony against his uncle, uh, that that
3 was probably going to happen as early as the 8th.
4 As early as what was that Monday.
5 Q This was on the 13th when this occurred. So you
6 were already past the time when you had filed
7 pretrial motions in the Avery case; correct?
8 A Yeah. I'm sorry. I misspoke, then. But there was
9 a, urn whatever that Monday was would be the
10 15th urn, there was an event or a -- a reason
11 either in the Dassey or Avery cases, um, that I
12 wanted the plea secured sometime earlier that next
13 week.
14 And, in fact, if I misspoke as to the
15 dates of the motions, then but that's why that
16 weekend was chosen.
17 Q Okay. Um, had Brendan Dassey confessed to you
18 in in a in a form that you felt was was
19 going to be useful to you in the Avery case, um,
20 couldn't you have come back into court after
21 May 15, which was that Monday, and said, "Your
22 Honor, we'd had a bombshell here. I need to file
23 some additional motions."?
24 A Probably.
25 Q Okay.
1 A There were more, you know, that bombshells
2 happened on a weekly basis with the Avery case, so,
3 uh
4 Q The point is, is that
5 A Yes.
6 Q you could have waited for a time where
7 Mr. Kachinsky could have been present during that
.8 interview had you wanted to?
9 A Probably. But there's a again, there is a very,
10 and was a very, real strategic reason to do it
11 that that weekend.
12 I recognized the problem of
13 Mr. Kachinsky not being there, uh, and his
14 sending a surrogate in his place.
15 Um, however, I thought his discussions
16 with Brendan, his written acquiescence to it,
17 satisfied at least our legal and ethical
18 responsibilities of taking that statement.
19 Q And just so we're clear the surrogate was
20 Mr. O'Kelly; correct?
21 A Yes.
22 Q And Mr. O'Kelly is not alawyer; correct?
23 A That's right.
24 Q Okay. Now, um, do you remember the word you
25 used, Ken, when I spoke to you about the events

1 of May 13?
2 A Yes.
3 Q What was that word?
4 A Fiasco.
5 Q Okay. And why was that afiasco?
6 A Well, that was thatwas, uh, paraphrasing
7 Mr. Wiegert and Fassbender's characterization of
8 their interview with Brendan. They walked into that
9 interview very much expecting a very clear and
10 concise and even cooperative subject. , And they
11 didn't get that.
12 Q Okay. In fact,when Brendanbegan thatinterview
13 he had reverted back to the very first story that
14 he had told the investigators about only being
15 present during the fire with Steven; correct?
16 A Brendan made someinconsistentstatements during that
17 May 13 interview. That's correct.
18 Q Okay. What is your understanding when you use
19 the word "proffer," Mr. Kratz, what do you mean?
20 A I'm sorry?
21 Q When you use the word "proffer," what do you mean
22 by that term?
23 THE COURT: In what context?

24 Q (By Attorney Drizin) Did you consider the events
25 of this weekend to be part of a proffer?
1 A I don't use that term in that in that context.
2 I'm sorry. I use it to the court when I make an
3 offer of proof, but but that's the only context in
4 which I use that.
5 Q Okay. Now, with regard to the May statements
6 that were obtained from Brendan, okay? Um
7 A I'm sorry. Which dates?
8 Q May 13 statements. Okay?
9 A All right.
10 Q Okay. You did not use the May 13 statements
11 against Brendan at trial; correct?
13 Q Okay. You did use telephone confessions that
14 Brendan made to his mother against Brendan at
15 trial; correct?
16 A In rebuttal, yes. After Brendan came up with this
17 Kissthe Girls idea. That's when we used that
18 statement.
19 Q But my point is that they were used against him
20 at trial?
21 A They were used yes.

22 Q Okay.
23 A Not in my case in chief.
24 Q Okay. But they were referenced in closing
25 argument as well?
1 A Yes.
2 Q Prior to this May 12 and 13 prior to this
3 May 13 fiasco, had you had any discussions with
4 Mr. Kachinsky in which the word "proffer" was
5 used?
6 A Maybe by Mr.Kachinsky. I I can'timagine by me.
7 Q Okay.
8 A That isn't a a a word in my
9 Q What context was he using that word?
10 A I don't know that he did. If you can point to it
11 to something, I'd be happy to look at it and tell you
12 what I think he means by that.
13 Urn, I as I mentioned, we were of the
14 understanding that this statement was to be
15 presented for Mr. Dassey to place himself in a
16 positive light, or to hopefully garner from the
17 State a reduced or positive dispositional
18 recommendation. Mostly talking about, urn, parole
19 or extended supervision eligibility dates, not
20 the charge itself.
21 The charge that I was going to insist
22 upon was contemplated was always first degree
23 intentional homicide.
24 Q So
25 A So we're we're talking about the is he going to

1 spend the rest of his life in prison or not.
2 Q Okay. So just so I'm clear, regardless of how
3 Brendan performed on May 13, and how helpful his
4 testimony would have been against you against
5 Steven Avery at trial, under no circumstances
6 were you going to take a -- a first degree
7 murder charges off the table?
8 A That was my position certainly in May of '08.
9 Q Were you going to take the sexual assault charges
10 off the table?
11 A Probably not. Not if I was going to use them against
12 Steven.
13 Q Right.
14 A The sexual assault conviction and the jury knowing

/
15 about that, for strategic reasons, was absolutely
16 imperative.
17 Q Okay.
18 THE COURT: Hang on just a second. Just
19 to make the record clear, you just said, "That
20 was my position in May of '08." I think you
21 meant '06.
22 THE WITNESS: I'm sorry. I did.
23 Q (By Attorney Drizin) Okay. Urn, just to tie up a

24 few other things, Mr. Kratz, from earlier, you
25 testified earlier today that the instances in
1 which Brendan was questioned by your
2 investigators in February and in March were
3 interviews; is that correct?
4 A Certainly February was. And that's certainly my
5 characterization of how the March 1 contact with him
6 began. Began as a witness interview.
7 Q But it then morphed into an interrogation;
8 correct?
9 A It did.
10 Q Okay.
12 Q Okay. And so once it morphs into an
13 interrogation, okay, um, doesn't that have
14 special significance for Miranda -related
15 arguments?
16 A No.
17 Q Why not?
18 A Because I believed that Miranda provision was
19 absolutely adequate and any challenge to that would
20 have been unsuccessful. That was my my take on
21 it.
22 Q I understand that was your belief. But it does
23 have special significance in terms of being able
24 to raise Miranda-based arguments in trying to
25 suppress the statement; correct?

1 ATTORNEY FALLON: Ob ob I'm going
2 to object. Counsel is certainly capable of
3 answering the question, but, um, the Court is the
4 source of the law, and this is a fact-finding
5 hearing, and asking for Counsel's
6 I mean, if Counsel wants, I'll be happy
7 to have Mr. Kratz share his knowledge on Miranda
8 considering the amount of training he does on the
9 issue.
10 ATTORNEY DRIZIN: These are just
11 preliminary questions to ask this question, okay?
13 objection.
15 Q (By Attorney Drizin) Um, after the interviews on
16 May 27 of Brendan Dassey of of February 27
17 of Brendan Dassey, okay, Mr. Dassey had
18 implicated himself in in activities relating
19 to building the fire, um, in which Teresa
20 Halbach's body was burned; correct?
21 A That's right.
22 Q Okay.And he also had admitted toseeing some
23 parts of her body in the fire; correct?
24 A That's right.
25 Q As a result of that interview,didn't you believe

1 that you had probable cause to charge Brendan
2 with a mutilation of a body under Wisconsin law?
3 A No.
4 Q Okay. Why not?
5 A Because mutilationrequires an intent, ascienter
6 element, that hehas anintent to dothat, to conceal
7 a crime.
8 His statement, although certainly
9 knowing that his Uncle Steve was involved in that
10 process, uh, probably fell short of his admitting
11 that scienter or that intent element.
12 Q Okay. During the May ' the February 27
13 interview of Brendan at the Two Rivers Police
14 Station, okay, a Miranda form was used with
15 Brendan, urn, that was a a certain Miranda
16 form was used to administer his rights; correct?
17 A Yeah. I don't think it was our form.
18 Q No, it wasn't.
19 A But it was somebody's
20 Q It was somebody's form. Prior to the interview
21 on May 1 did you instruct Officers Wiegert and
22 Fassbender to administer a different Miranda form
23 to Brendan?
24 A Miranda warnings. I don't know if I suggested what
25 form to use.
1 Q Okay. Um, but did you suggest to them that the
2 Miranda warnings that were given in Two Rivers
3 were problematic and that they should give a
4 different Miranda warnings?
5 A No, I don't think I did.
6 Q Okay.
7 ATTORNEY FALLON: If I may, I think
8 Counsel misspoke when he said May 1. I believe
9 he meant the March 1 statement in his question.
10 ATTORNEY DRIZIN: Thank you. I did.
11 Um, you know, at this time, Your Honor, I would
12 ask that the exhibits that were referred to by
13 Mr. Kratz and authenticated by him be moved into
14 evidence. Um, and for the record, those are
15 Exhibits 310, 343, 344, 338 and 356.
16 ATTORNEY FALLON: No objection.
17 THE COURT: They're received. Any further
18 questions?
19 ATTORNEY DRIZIN: No further questions.
20 THE COURT: Clarification questions?
21 ATTORNEY FALLON: About five or six if
22 it goes the way I plan.
23 CROSS-EXAMINATION
24 BY ATTORNEY FALLON:
25 Q Um, I guess I'll pick up, uh, right where the

1 defense left off. Mr. Kratz, urn, let's start
2 with February 27, the statement at the Mishicot
3 High School. Do you believe, based on your
4 experience, that Miranda rights were necessary
5 for the statement at the school?
6 A No.
7 ATTORNEY DRIZIN: Objection, Your Honor.
8 He objected to my asking that
9 THE COURT: Yeah.
10 ATTORNEY DRIZIN: very statement.
11 ATTORNEY FALLON: Well, he just clar
.12 he just asked questions about instructing on
13 Miranda and I'm going to ask why.
14 ATTORNEY DRIZIN: And those objections

15 were substained (phonetic) sustained.
16 THE COURT: I'm going to sustain this
17 ATTORNEY FALLON: All right.
18 THE COURT: objection.
19 ATTORNEY FALLON: Very well.
20 Q (By Attorney Fallon) All right. Mr. Kratz, if
21 you could, um ah, yes. Explain to us, urn
22 first all, let me ask this question:
23 In order to convict Steven Avery of
24 first degree murder, and I'm talking of the
25 murder charge, did you need the testimony of
2 A No. It wasn't offered at Steven Avery's trial.
3 Q Would it be fair to say that the only benefit to

4 Mr. Dassey's testimony would have been to support
5 the charges of sexual assault, kidnapping, and
6 false imprisonment?
7 A No. I think there were side benefits to to Mr.
8 Mr. Dassey, and when we talked about trial strategy,

9 if we felt less comfortable trying this case from a
10 forensic science standpoint rather than a, urn, you
11 know, statement of witnesses or co-defendant
12 statement, that certainly would have had a collateral
13 benefit.
14 Having said that, urn, as you, and
15 probably everybody now knows, we chose to try the
16 Avery case very much as a circumstantial forensic
17 science case.
18 Q All right.
19 A But to sustain the conviction for sexual assault
20 against Mr. Avery I think it's fair to say that we
21 would have needed Mr. Dassey to testify.
22 Q All right. Now, it you indicated there were
23 other reasons or matters, and I'm not sure that
24 we heard them all, but what what was the
25 urgency for proceeding with the May 13 interview

1
2 A Well, as I mentioned, there was an event, and and
3 I apologize for not knowing what it is because I'm
4 sure it wouldn't have been that hard to figure out,
5 on the week of the 15th of May. Something was
6 happening that week whereby, for a strategic or legal
7 reason, urn, I wanted this plea wrapped up early that
8 next week.
9 Q All right. However, for purposes of completing
10 the record, it soon became apparent that the
11 Avery case would not proceed to its originally
12 scheduled trial date; is that correct?
13 A That's right. There were many postponements.
14 Q All right. Um, why did you suggest to
15 Mr. Wiegert and Fassbender that they Mirandize
16 Mr. Dassey prior to the March 1 statement?
17 A Well, I suspected that was going to how do I say
18 this? That was going to be a important statement
19 that could include inculpatory statements by
20 Mr. Dassey.
21 And although although you and I,
22 Mr. Fallon, train cops around the state about
23 Miranda, 5th and 6th Amendment, not to Mirandize
24 if you don't have to, there is a school of
25 thought that if it's anywhere close, you offer
107
1 Miranda warnings.
2 It's sort of the wearing a belt and
3 suspenders. Just making sure there's really no
4 down side to Mirandizing somebody even if it
5 turns out to to be a non-custodial issue.
6 So it was under that- extra caution that
7 I made that recommendation.
8 Q So it's simply, then, as a precautionary measure?
9 A Absolutely. I if Mr. Dassey was, going to
10 inculpate himself on March 1, there's no way I wanted
11 to lose that statement.
12 ATTORNEY FALLON: Thats all I have.
13 THE COURT: Redirect, if any?
14 REDIRECT EXAMINATION
15 BY ATTORNEY DRIZIN:
16 Q Prior to the March 1 statement, you had
17 discussions with with Mr. Wiegert and
18 Mr. Fassbender, urn, about their plans for that
19 interview; correct?
20 A In a general sense, I think that's -- that's fair.
21 Q Okay. And you expected that interview to be
22 that there were the potential for that interview
23 to morph into an interrogation; correct?
24 A I think that's true.
25 Q And so when you advised Mr. Fassbender and
108
1 Wiegert to read him his Miranda, rights that was
2 one of the reasons that you did; correct?
3 A Well, certainly on the on on on the
4 mutilation, as you have aptly noted, Mr., um
5 Mr. Dassey came close to inculpating himself on
6 on on the Mi ran excuse me on the mutilation
7 charge already, and on February 27th, um, but, you
8 know, I I stand by that being very much a witness
9 interview rather than an interrogation, and to
10 Mirandize or to provide Miranda warnings early on,
11 um, again, gives an investigator more flexibility to
12 perhaps slide seamlessly into an interrogation mode
13 without having to stop and Mirandize.
14 Q Okay. In your discussions with Mr. Wiegert and
15 Mr. Fassbender prior to the March 1 interview,
16 did they tell you that they intended to try to
17 ask question to ask questions of Mr. Dassey to
18 link him to the sexual assault of Teresa Halbach?
19 A I don't think so. Quite frankly, the the red
20 flag, for term that you've been using, that Brendan
21 said on the 27th, had to do with the clothing. Had
22 to do with the clothing that was used to clean up
23 the what we believe were blood stains in the
24 garage.
25 And Brendan had given a statement as to

1 his knowledge of that clothing in some kind of a
2 bag, but then that got kind of glossed over and
3 so, frankly, that was the part of that statement
4 that we kind of looked at ourselves in saying, he
5 needs to be interviewed again.
6 Q And you you knew, though, that Investigators
7 Wiebert (phonetic) Wiegert and Fassbender were
8 going to try to get Brendan to admit more details
9 about what he knew about Teresa when he saw body
10 parts in the fire; correct?
11 A Well, I dont know if that was just it, but we - we,
12 collectivity, Wiegert, Fassbender, and myself,
13 believed Brendan knew more than he had told on the
14 27th.
15 Q Okay. Now, your your your statement is
16 that this started out as an interview; correct?
17 A That's my opinion, yes.
18 Q Okay. And you you know that the Miranda
19 warnings that were given to Brendan were given to
20 him in the car; correct?
21 A It's my understanding well, they were first given
22 to him there.
23 Q - But they were never fully given to him again at
24 any other point in time?
25 A They were refreshed, though, before the -- the, urn

1 the interview began.
2 Q And by "refreshed," you mean they the officers
3 asked him if he remembered what they had done,
4 you know, an hour or so before?
5 A That's what- it's called, yes.
6 Q Okay. And so in an abundance of caution you had
7 asked them to give him Miranda warnings in what
8 you're classifying was an interview not an
9 interrogation?
10 A Yes.
11 Q Okay. At some point this became an
12 interrogation; right?
13 A Yes.
14 ATTORNEY FALLON: At this point I'm
15 going to object as being beyond the scope of my
16 re my cross.
IV THE COURT: It is. Where are we going?
18 ATTORNEY DRIZIN: I just want to ask one
19 more question.
20 Q (By AttorneyDrizin) Did
21 THE COURT: One more.
22 ATTORNEY DRIZIN: One more.
23 THE WITNESS: (Unintelligible.)
24 Q (By Attorney Drizin) Did you advise, in an
25 abundance of caution, Investigators Wiegert and

1 Fassbender to re-administer Miranda warnings to
2 Brendan once this became clear it was an
3 interrogation?
4 A No.
5 Q Okay. Um, with regard to the sexual assault
6 charges in this case, um, those charges were, in
7 fact, dropped against Steven Avery when Brendan
8 Dassey's, um, plea discussions fell apart;
9 correct?
10 A It wasn't dismissed, I don't believe, until the
11 trial. And plea discussions with Brendan,
12 Mr. Fremgen, Mr. Edelstein, um, were ongoing up and
13 through the the Avery trial.
14 So it wasn't until we were unable to
15 secure Brendan's assistance through a plea deal
16 that it became clear that we'd have to abandon
17 the sexual assault.
18 ATTORNEY DRIZIN: All right. No further
19 questions. Thank you for your cooperation.
20 ATTORNEY FALLON: Nothing.
21 THE COURT: You may return to your seat.
22 THE WITNESS: Thank you, Judge.
23 THE COURT: Next witness.
24 LEONARD KACHINSKY,
25 called as a witness herein, having been first duly

1 sworn, was examined and testified as follows:
2 THE CLERK: Please state your name and
3 spell your last name for the record.
4 THE WITNESS: Len Kachinsky,
5 K-a-c-h-i-n-s-k-y.
6 DIRECT EXAMINATION
7 BY ATTORNEY DVORAK:
8 Q Mr. Kachinsky, um, why don't you give us a little
9 bit of of your background? You're you're
10 an attorney practicing in Wisconsin?
11 A Yes. I graduated from the University of Wisconsin
12 Law School in 1978.
13 Then I served as a JAG officer on active
14 duty for it's got to be over four years.
15 And been in private practice since then
16 and also in the Army Reserve. Retired from the
17 Army Reserve July, 2007, as a lieutenant colonel.
18 Q Okay. Now, specifically regarding Brendan
19 Dassey, uh, you were appointed was it on
20 March 7 or March 8?
21 A March 7.
22 Q March 7. Okay. Um, and on March 7, how did you
23 get word that you were appointed? Did you get a
24 phone call first?
25 A Uh, state public defender called us up, asked me if I

1 would take the case, and I said, yes.
2 Q Do you remember about what time of the day that
3 was?
4 A I think it was sometime in the morning.
5 Q Okay. And where was Brendan Dassey being held at
6 this time?
7 A Sheboygan County Juvenile Detention.
8 Q And your office is in Appleton?
9 A Correct.
10 Q And is were you in Appleton at the time that
11 you got that call?
12 A I believe so.
13 Q All right. How far is that away?
14 A From Sheboygan?
15 Q Yeah.
16 A Approximately 80 to 90 miles.
17 Q Okay. Urn, and did you talk to Brendan on that
18 day? On March 7?
19 A I don't believe I did.
20 Q Okay. Um, however, you did, uh, talk to the
21 press; is that right?
22 A Um, yes. I rec shortly after the appointment the
23 calls starting rolling in at the office.
24 Q Sure. Was it substantial public interest in this
25 case?
1
2 Q Um, I want to draw your attention to Exhibit 317.
3 I think it's in in binder five up there.

4 A Three seventeen?
5 Q Yes.
6 A Yes.
7 Q Okay. I'd just like you to to review that in
8 its entirety.
9 A Okay. I reviewed it.
10 Q Okay. Thank you. One of the things and
11 and this is a a news report from Chanel 26; is
12 that right?
13 A Right.
14 Q Okay. You recall that interview?
15 A I do.
16 Q All right.
17 A Vaguely.
18 Q Vaguely. Sure. Um, this help refresh your
19 recollection about
20 A Um, yes. There's at least one it does. There's
21 at least one significant part that's absolutely
22 incorrect and not something I said.
23 Q Okay. Well, it says here that youaccepted the
24 case knowing it'd be your, uh, greatest
25 professional challenge; is that right?

1
2 Q Um, and they also quote you as having said, and
3 it it is in quotes, it says:
4 "We have a 16-year-old who, while
5 morally and legally responsible, was heavily
6 influenced by someone that can only be described
7 as something close to evil incarnate."
8 Right?
9 A That's what it says I said. But that wasn't me.
10 Q Okay. Um, and okay. Did you what did you
11 say? What did you recall saying?
12 A Of the things that are in Exhibit 317, I recall
13 saying I don't recall the thing about
14 criticizing Avery in that fashion is not something
15 that I said.
16 I also would I would guess it might
17 have been said by Mr. Sczygelski, but I don't
18 know. Um
19 Q Well, did you did you watch the broadcast that
20 night?
21 A No, I don't think so.
22 Q Did anybody talk to you about the broadcast?
23 Hey, I saw you on TV?
24 A All the time in the community, and the Y, other
25 places.
1 Q Okay.
2 A Church.
3 Q And - and and why don't you think that this
4 isn't something that you said? What do you
5 recall saying?
6 A I don't think I even touched the topic. Uh, I
7 certainly did not say that about Mr. Avery. It's
8 just not something I would normally have said.
9 Q Well, do you mean Mr. Avery or do you mean
10 Mr. Dassey?
11 A I don't the whole thing is just not something that
12 I I made I was very, very careful not to be
13 committal as to whether or not Mr. Dassey was
14 involved in this or not.
15 Anything I would have said would have
16 been statements conditional, you know, this is on
17 the Complaint. If this is true, that might be.
18 But I don't use typically don't use
19 words like levil (phonetic) incar evil
20 incarnate. That's just not something I'd say.
21 Q Okay. And and why wouldn't you say that?
22 A It's just not my personality. I I am much calmer,
23 I think, and and more restrained. And I just
24 don't say that stuff.
25 Q Okay.
1 A It's not my just not my language pattern, I guess.
2 Q What about I is there thing about this
3 statement that bothers you?
4 A I think it would be bothersome to say to say that
5 we have a 16-year-old who's morally and legally
6 responsible. Urn, that would, in effect, admit guilt.
7 And that is something you should definitely not say.
8 Q And it's fair to say that you -- you really
9 shouldn't say anything that even suggests guilt
10 to the press; correct?
11 A I think you can go through the process of explaining
12 the process and and tell people if the Complaint's
13 accurate, this and this applies, you know, go through
14 some hypotheticals and conditional-type statements.
15 But not something of that nature where
16 you're at least if that's an out-of-court
17 statement, uh, that would just simply I as
18 I recall, that might be something that was said
19 at the initial bail hearing. I don't know.
20 But. ..
21 Q All right. It also, later on, you say in here
22 that if I can find it here. Do you recall
23 and on I want to draw your attention, because
24 this is what I'm going to use, to Exhibit 55
25 A That's in this volume? Volume one?

1 Q In volume one, yes.
2 A Should I keep
3 Q I'm sorry. Two.
4 A this other one open?
5 ATTORNEY FALLON: Volume two?
6 ATTORNEY DVORAK: Yeah. Volume two.
7 THE WITNESS: Look at 57, you said?
8 Q (By Attorney Dvorak) Fifty-five.
9 A Fifty-five. Oops. It's a copy of my invoice.
10 Q Okay. And would you just look through it and
11 and and and say that that's a an
12 accurate an accurate copy of your invoice to
13 the public defender's office; correct?
14 A Urn, yes. That could be. I think we were still
15 submitting them this way instead of electronically at
16 that time.
17 Q Okay. I tell you what, just for the sake of room
18 here
19 A Sure.
20 Q I'm goingto give you a copy of55
21 A Okay.
22 Q becauseI'm going to I'm going to be using
23 that.
24 Now, on at your your voucher
25 says that on on March 8, the next day, urn, you

1 did some research, and it says that you
2 researched the Lilly and, urn, Crawford cases; is
3 that right?
4 A Yes.
5 Q Okay, And I assume that refers to Lilly v.
6 Virginia and Crawford vs. Washington, two
7 confrontation clause cases?
8 A Yes.
9 Q And Lilly v. Virginia had to do with the
10 admissibility of a co-defendant's confession in a
11 case; is that right?
12 A Yes.
13 Q Okay. And and under under the old
14 Roberts paradigm?
15 A Thatmight be.
16 Q That's fine. But but Crawford changed the
17 whole landscape of confrontation clause? Fair to
18 say?
19 A Yes.
20 Q Okay. And this being your first thing, you
21 were I assume you were you were looking to
22 see that a a whether or not the State
23 could introduce Brendan's confession in Steven's
24 case?
25 A Yes. The the issue was brought up, I I think,

1 from some of the media questions. I think I knew
2 I thought I knew the answer and but I wanted to
3 look at the cases just to be absolutely sure so that
4 if I answered those questions they would be accurate.
5 Q Okay. Urn, had you had any conversations with
6 Mr. Kratz yet about the case?
7 A I'd have to look at the whatever the whatever's
8 on the voucher would reflect it. I suppose the
9 answer is, no.
10 Q Okay. And it also your your voucher also
11 reflects that you spoke with, urn, it looks to be
12 three members of the media, J. Lee, who's a
13 reporter for the Post Crescent?
14 A Correct.
15 Q Uh, and you did an interview with TV-2 ?
16 A Yes.
17 Q And, urn, three e-mails to and from Aaron Keller?
18 A Correct.
19 Q And who is Aaron Keller?
20 A I believe he works for TV-26.
21 Q Okay. Um, you had also regarding that
22 interview with Chanel 2, would you take a look at
23 Exhibit 306 please?
24 A Yes.
25 Q Okay. You you've indicated that you stated

1 youve always liked difficult and exciting cases
2 and this is one of them?
3 A Yes.
4 Q Okay. What was it about this case that excited
5 you?
6 ATTORNEY FALLON: Objection. Relevance.
7 THE COURT: Overruled. He can answer.
8 THE WITNESS: Urn, it at that time
9 appeared to be just involving publicity was
10 high. There would be difficulties at that time.
11 There was certainly a you know, the family
12 history and everything else with with the
13 Averys. So it was in that respect a difficult
14 high profile case.
15 Q (By Attorney Dvorak) Okay. So you were
16 attracted by the fact it was a profile case?
17 A Oh, sure.
18 Q And then you you make the statement that if
19 the confession is valid and admissible as
20 evidence, uh, you I mean, it would almost
21 certainly result in a conviction? Right?
22 A Correct.
23 Q Okay. You didn't have any problem talking about
24 the possibility of a conviction at this point?
25 A No. I didn't think there was I thought this was

1 pretty much stating the obvious.
2 Q Okay. You hadn't talked to Brendan yet, though,
3 right?
4 A I don't recall the exact day day as this.
5 Q This is the 8th.
6 A I don't believe I may have. I don't believe I did.
7 I think
8 Q Yeah. Okay.
9 A the first day
10 Q Well, just
11 A Yeah.
12 Q just to help you with this, Mar March 10
13 appears to be the first time you went to see him.
14 Is that
15 A That sounds correct.
16 Q Okay. Good. What did you know about the case?
17 A Uh, Criminal Complaint. The publicity that had
18 attended the case ever since the death of Teresa
19 Halbach.. That was in the local media, which I would
20 have seen.
21 Q So so when you were talking about this you
22 were re relying, at least in part, on press
23 reports; right?
24 A Correct.
25 Q Okay. Um, even though,for example, theyseemed

1 to have gotten it seriously wrong on March 7?
2 A With respect to that portion of the Aaron Carol
3 Keller interview, I think he attributed it to the
4 wrong person.
5 Q Did somebody else say that?
6 A I don't know if they did or not. But I know I
7 didn't. I know there were.some things that were
8 attributed to me that I think was Mr. Sczygelski's
9 argument on bail or something.
10 I think that Mr. Sczygelski had used the
11 word "coercion," for example, and I definitely
12 would not have, because coercion didn't seem to
13 fit the facts. And coercion's not really a
14 defense in this sort of case, etc. I don't know
15 what he said or when he said it, but I know I
16 didn't do it.
17 Q Okay. You say coercion didn't fit thefacts.
18 But what you knew about the facts so far was what
19 you read in the Complaint and what you read in
20 the press? Heard
21 A Correct.
22 Q in the press?
23 A I I would expect that
24 Q All right. And you then went on to say that a
25 conviction would carry an automatic life
124
1 sentence. Since Dassey's just 16, Kachinsky
2 hopes to argue a case that won't leave his client
3 behind bars forever. Is that a fair, um, summary
4 or accurate statement of what you said? It's the
5 last
6 A Right.
7 Q And and then you finish with, I think life
8 without parole certainly for Brendan would be
9 unjust?
10 A I that's a fair summary, yes.
11 Q Okay. That's, of course, assuming at this point
12 that that Mr. Dassey was going to get
13 convicted of this; correct?
14 A Correct.
15 Q And then on March 9, the next day, um, you had
16 two uh, exchanged two e-mails with reporters;
17 right?
18 A Correct. Aaron Keller, yes.
19 Q Right. Was it Aaron Keller that did the
20 interview on March 7?
21 A Yes, it was.
22 Q Okay. Did did you have a discussion with
23 Mr. Keller about his story on March 7?
24 A No, I don't think I monitored what the story was so I
25 didn't wasn't really directly aware of it.
125
1 Q All right. And then you did two other things
2 on on March 9; right? You had a a
3 actually, you had you also had an interview
4 with TV-26; right?
5 A Yes.
6 Q Okay. And you note on that same line that you'd
7 had a phone conference with Barb Dassey?
8 A That should have been Barb Janda, but, yes.
9 Q Okay. All right. Urn, and you've got you got
10 .6 hours? Do you know how long you talked to
11 each either one of these folks? Was it a long
12 conversation with Barb?
13 A Maybe about ten minutes.
14 Q Okay. You had a you had a a a phone
15 conference, also, or e-mail, or both, I guess,
16 with Sergeant Wiegert? What was that about? Do
17 you remember?
18 A Right now I can't recall what it was. It was
19 something about getting access to evidence, perhaps,
20 or something like that.
21 Q Okay. Do you recall when you first got access to

22 evidence?
23 A I don't recall the the date. It might be

24 reflected here when I started reviewing stuff, but...
25 Q Okay. You you then go to visit strike
1 that. On with respect to your interview, I
2 want you to turn to Exhibit 40. That would be in
3 volume one.
4 A I have 40 in front of me.
5 Q Okay. Excuse me. I just lost my place here for
6 some reason. All right. Well, I lm sorry. We'll
7 move on to Exhibit 306 until we figure that out.
8 I'm sorry. Three-nineteen.
9 A Okay. I have it here.
10 Q Okay. And there's discussions in here about a
11 plea deal; is that right?
12 A Yes, there is.
13 Q Okay. You've you'veindicated you haven't met
14 with Dassey, but you're not ruling out a plea
15 agreement?
16 A Correct.
17 Q Okay. And you don't deny saying that?
19 Q And and you also mention in thisinterview
20 that that a plea agreement, if one were to be
21 reached, could include testifying against Steven
22 Avery. Mr. Dassey testifying against Steven
23 Avery?
24 A Yes.
25 Q Okay. Urn, and you go on to to talk about that

1 part of any plea agreement is that Brendan
2 testify truthfully at Steven Avery's trial? Urn,
3 the trial of anyone else that.might end up
4 getting charged in the case?
5 A Correct.
6 Q Okay. I'd like you to refer to Exhibit 320? The
7 next one? Oh. This was on March 9; right?
8 ATTORNEY FALLON: Excuse me. Exhibit
9 319 or 320 is March 9?
10 ATTORNEY DVORAK: Both of them are.
12 THE WITNESS: Okay. I have 320. I I
13 have it in front of me. Obviously, I wasn't
14 hired as the reporter said, but that's nothing I
15 told her.
16 Q (By Attorney Dvorak) Okay. And you indicated
17 here in this statement that while you haven't met
18 with Mr. Dassey yet, that you're not ruling out
19 the possibility of a plea agreement which could
20 include Dassey testifying against Steven Avery?
21 Is that an accurate summary of what you said?
22 A Yes,
23 Q Okay. Um, in your mind, talking about a plea
24 deal, that assumes Brendan entering a guilty
25 plea; correct?
1 A It would.
2 Q Yeah. Urn, now, I also want to draw your
3 attention, while we*re on March 9, to Exhibit
4 360?
5 A I see it.
6 Q Okay. It's a communication between Mr. Wiegert
7 and yourself informing you they need another set
8 of palm prints; right?
9 A Correct.
10 Q And, um and then there's a sentence that Ken
11 will talk with us about some things. Do you
12 recall what that was? Do you recall what he was
13 referring to?
14 A That's what the secretary wrote down. I'm not sure
15 what Mr. Wiegert would have said. My interpretation
16 of that, upon reading it in my computer, was that
17 they were going to get some more prints from
18 Mr. Dassey and wanted me to know about it in case
19 Dassey called up and complained that police were
20 talking to him again without me being present.
21 Q Okay. But but the next line had you had
22 any other discussions with Wiegert about anything
23 other than palm prints up to this point?
24 A No. I'm not even sure I talked to Wiegert that time.
25 Q All right. Well, I mean

1 A 'Til I got themessage.
2 Q up to this point, however?
3 A No.
4 Q Sorry.
5 A No.
6 Q All right. And what about with Mr. Kratz? You
7 had any conversation with Mr. Kratz? I assume
8 the Ken, here, that we're referring to, is is
9 Ken Kratz? The D.A.?
10 A I don't Idon't
11 Q All right.
12 A think so.
13 Q Okay. This is this is March 9; right?
14 A Yes.
15 Q Yeah. Okay. Urn, now, on your bill, we'll move
16 on to March 10, um, this is the you go to
17 to visit Brendan?
18 A Correct.
19 Q Correct. Okay. Had you had conversations with
20 the press prior to going out to visit Brendan?
21 A I think they might have called our office sometime
22 this morning and ask if that was going to happen,
23 yes.
24 Q Okay. How would they have found out that you
25 were contemplating going to see him on the 10th?

1 A I think they were calling they called, wondering
2 if I'd spoken to Brendan yet. And I says, no, i
3 haven't, I'm going to see him this morning in
4 Sheboygan.
5 Q Okay. And and when you got out from that
6 meeting, um, the press was there waiting for you;

7 right?
8 A They were there waiting when I got there.
9 Q Okay.
10 A Yes, they were.
11 Q All right. Now, you I want you to refer to
12 Exhibit 321. And if you would now, this is
13 > a a an interview with you on a a
14 script of an interview with you from NBC 26 on
15 March 10?
16 A Yes, it is.
17 Q Okay. Um, and I want to refer to you you
18 to what would be the third page of that exhibit?
19 A Okay.
20 Q It says you met with him for about an hour.
21 That's about accurate; right?
22 A Yes.
23 Q Okay. And it says that you describe Dassey as
24 sad, remorseful, and overwhelmed by the charges
25 against him; right?

1 A Yes.
2 Q Okay. Is that accurate?
3 A I believe so.
4 Q Okay. You used the term "remorseful"; right?
5 A Yeah. That that that I'm not sure I said. I
6 know I said sad and overwhelmed. I don't know about
7 remorseful or remorseful.
8 Frequently, I was asked, you know, is
9 Brendan remorseful, and I certainly can't answer
1.0 that question. That is an implication of guilt.
11 I don't think I said the word
12 "remorseful" but certainly sad and overwhelmed.
13 Q So the press got it wrong again?
14 A They might have.
15 Q Okay. And I want you to refer to the next page
16 after that. The, I guess, second full paragraph
17 down. It says that Kachinsky says at this point
18 he hasn't ruled out negotiating a plea deal in
19 the case; right?
21 Q Okay. You just come out from talking to Brendan;
22 correct?
23 A Yes.
24 Q And, again, you you you state to the press
25 that you haven't ruled out negotiating a plea

1 deal?
2 A Correct.
3 Q Okay. Um, the I want you to look at the
4 let's see. It's probably about five pages down.
5 It's two or three pages after that. It starts
6 A-26 on the top, if you see that line, above
7 the sort of a header?
8 A Oh, I see it.
9 Q Okay.
10 A May 26. Yes.
11 Q All right. I want you to
12 ATTORNEY FALLON: Excuse me, Counsel.
13 How many pages down on this exhibit? Seven?
14 ATTORNEY DVORAK: Yeah.
15 ATTORNEY FALLON: Thank you.
16 Q (By Attorney Dvorak) And if you go,to you see
17 where it says A-27 on the upper top?
18 A Okay.
19 Q It says that again, at the bottom of the page,
20 after meeting with the 16-year-old for the first
21 time, Len Kachinsky describes Dassey as
22 remorseful?
23 A I do.
24 Q Okay. Did you say that?
25 A I might have.
1 Q Okay. Again, you've just come out from from
2 talking to Brendan, um, in the jail? You meet
3 the press as you walk out?
4 A Correct.
5 Q Okay. And and you add that he seems sad,
6 concerned about a happen will happen to him,
7 and just overwhelmed by the whole thing; right?
8 A Yes.
9 Q And then you go on to describe that, you know, at
10 this point you're going to keep your options
11 open?
12 A Oh, correct.
13 Q Yeah. And and that you, in the bottom of page
14 A-27, you haven't ruled out a plea deal?
15 A Oh, sure. Yes, Isaid that.
16 Q And then onA-27, the next page?
17 A Okay.
18 Q Uh, thirdparagraph down?
19 A Yes.
20 Q It says, Kachinsky alsoblames Steven Avery for
21 leading his nephew down the criminal path?
22 A Yes.
23 Q Okay. And, now, is that something you said?
24 A I don't think the part in all caps is what I said.
25 That's was their summary or interpretation of it.

1 Q I see. Okay.
2 A But the person below is is correct.
3 Q Okay. So so what you're saying, then, is
4 if if you didn't say it, certainly the
5 impression that was left is that Steven Avery's
6 to blame for Brendan Dassey's involvement in this
7 case?
8 A That's the way they could have interpreted it.
9 Whether that's reasonable or not, accurate or not, I
10 don't know. But that's a matter of their
11 interpretation.
12 Q 1 So that's the message that got out to the press?
13 A That's the message the press sent to the public. I
14 don't .. .
15 Q Okay. Well, the the the information came
16 from you at some point?
17 A The the stuff that I'm quotedhere, correct.
18 Q All right. And and by when we talk about
19 criminal path here, Brendan had never been
20 convicted of anything before; correct?
21 A Oh, correct.
22 Q There no juvenile adjudications? No nothing
23 as an adult? So if we're talking about criminal
24 path, we're talking about this case?
25 A Oh, correct. I wanted public to feel sympathetic

1 toward Brendan because of his lack of prior record.
2 Q Okay. Now, you then say, I think common sense
3 says he's a 43-year-old who's been in prison,
4 referring to Steven Avery, right or wrong, it
5 certainly stands to reason that Brendan Dassey
6 could, perhaps, not be coerced but easily led
7 into the offenses he allegedly committed; right?
8 A That's correct.
9 Q Okay. So what you're speculating at this point
10 that Brendan's guilty?
11 A I guess I'm just pointing out the obvious. I didn't
12 certainly make any judgments by that that
13 statement. Pointing out the what people might
14 think about it.
15 Q Okay. And how how did that advance Brendan's
16 case by talking about by by saying things
17 like, um, Steven led him down the criminal path,
18 or saying that while he may not have been coerced
19 could easily have been led in led into
20 committing the offense?
21 A I thought it was important to get accurate
22 information to the media about the case, about
23 options, about how the criminal justice system works.
24 And, in part, because I knew that
25 Brendan's family was watching these news casts,

1 and so in effect in some ways it was a message
2 that was, urn, sent to them, uh, to try to get
3 them accustomed to the idea that Brendan might
4 take a legal option that they don't like and try
5 tO'explain why he would do that and, perhaps, to
6 cut down on possible interference from his
7 family.
8 So part of the intended audience was
9 Brendan Dassey's family.
10 Q And
11 A And Brendan himself. He watched he was isolated
12 in the Sheboygan County Detention Facility, and about
13 his only contact with the outside worlds world was
14 visits with his parents and television.
15 Q So so the message that you were sending was
16 intended not just for Brendan's family but for
17 Brendan as well, correct?
18 A In in a in a sense, yes.
19 Q Yeah. Now, during that meeting with Brendan on
20 that day he told you he didn't do this; correct?
22 Self-serving hearsay.
23 THE COURT: Overruled. You can answer
24 that.
25 THE WITNESS: I believe he did.
137
1 Q (By Attorney Dvorak) Okay. He he he
2 and and he said that the statements that he
3 had made, especially the ones in the Complaint,
4 you asked him about that; right? You went over
5 the Complaint with him?
6 A Yes.
7 Q And he told you that what he said and what was in
8 the Complaint about what he said was., not true;
9 correct?
10 A I believe he said that.
11 Q Okay. And he also told you at that time that he
12 wanted to take a polygraph test

13 A Oh, correct.
14 Q to prove that; correct?
15 A Yes.
16 Q So Brendan isasserting hisinnocence

17 A Yes.
18 Q when he talks to you. Um

19 ATTORNEY FALLON: Excuse me, Counsel.
20 Are we still March 10?
21 ATTORNEY DVORAK: We're still March 10.

23 ATTORNEY DVORAK: But we'll move on.

24 On I just want to briefly go through I just
25 want to briefly go through March 11 through
1 March 14, just to to summarize what's going on
2 there.
3 Q (By Attorney Dvorak) Urn, would you take a look
4 at those Exhibit 25? Or 55?
5 A Yes. Okay.
6 Q All right. Urn, the only work you did on the case
7 during those three days was correspondence with
8 the media; correct?
9 A Not entirely.
ID Q Okay.
11 A Clyde Crib was an -- C. Crib is Clyde Crib. He was
12 an investigator.
13 Q Right.
14 A Cindy McCafferty. I don't recall who she was. I
15 think it was some member of the public that just
16 wrote me and said
17 Q Who's Andy Thompson?
18 A Uh, he's a reporter for the Appleton Post Crescent.
19 Q Okay. So you had talked to Aaron Keller again?
20 A Right.
21 Q You talked to Leslie Fox?
22 A Yes.
23 Q That's from Court TV?
24 A I believe so.
25 Q Okay. That's national syndicated program?
139
j L
1 A Yes.
2 Q All right. Urn, Kathy Bender from Dateline NBC?
3 A Yes.
4 Q Another national program?
5 A Right.
6 Q And you got Angenette?
7 A Yes.
8 Q Is that Angenette is it Levy or Levy?
9 A Levy.
10 Q Levy. Okay. And she's with a a TV station in
11 what? Green Bay?
12 A Correct.
13 Q All right. You first name basis with her?
14 A At this point, yes. Not then.
15 Q Okay. Well, I'm you did an interview with
16 TV-5?
17 A Yes.
18 Q Uh, you did an an interview with Lorin Cook on
19 Fox 11?
20 A Yes.
21 Q All right. And you spent .1 hours during this
22 period of time e-mailing your investigator?
23 A I believe so.
24 Q Okay. Now, on March 17 is the first appearance
25 in court. I there was there's some

confusion when I was reading the record about
2 whether this was actually an arraignment or or
3 a scheduling conference. Was Brendan was
4 present, however; correct?
5 A I believe so.
6 Q Okay. You hadn't seen Brendan, um, since March
7 10?
8 A Correct.
9 Q You hadn't talked to Brendan since March 10?
10 A Correct.
11 Okay. Had you so had you prepared him for
12 what was going on? That what was going to
13 happen on March 17? Did you talk to him at all
14 about what was going to happen?
15 A I think I told him that it was going to be a status
16 conference to decide when other dates were going to
17 be scheduled and that's all that there was to say
18 about it.
19 Q Okay. And when would you have told him that?
20 A During a meeting we had on March 10.
21 Q Okay. Um, now, also, on March 17, you went on
22 Nancy Grace; right?
23 A They called me. But, yes.
24 Q Okay. I'm sorry?
25 A They called me. But, yes.

1 Q Yeah. Okay. And Exhibit 41 by the way, what
2 is what is Nancy Grace?
3 A Nancy Grace, uh, was a news reporter that had a
4 nationally syndicated show dealing with criminal
5 justice issues. You said 41?
6 Q Yes. And page ten.
7 A Correct. I have it.
8 Q Okay. Um, your first comment is, you're saying:
9 "No, he has his wits about him, I'm
10 sure. But he certainly has learning difficulties
11 that are greater than that of the average
12 person."
13 Um um, did you that's information
14 that you had obtained from Mr. Dassey?
15 A I believe I oops. I believe I'd obtained that
16 from from his mother.
17 Q So you're you're you're and and
18 probably as well as your observations of
19 Mr. Dassey?
20 A Sure.
21 Q Okay. So, um and and then you you say:
22 "If the tape is accurate"
23 That's the next thing down.
24 "an accurate recollection of what
25 occurred, there is, quite frankly, no defense.

1 Coercion under Wisconsin Statutes is not a
2 defense to first degree intentional homicide and
3 it requires an imminent threat of death or great
4 bodily harm. So our first thing we're going to
5 look at is whether or not the statement's
6 admissible, whether or not there was some sort of
7 promises or threats made to Dassey to cause him
8 to make that statement. Since it's been
9 preserved on videotape, we should be able to tell
10 that soon after I get that, although there's also
11 other circumstances to consider."
12 Is that accurate?
13 A Yes.
14 Q Okay. So you're telegraphing the importance
15 of of of that statement to to everyone
16 and and and and the importance of it to
17 the case; right?
18 A I don't know if telegraphing is the word. I'm kind
19 of restating the obvious.
20 Q Okay. And you're, in in the course of this,
21 also indicating that, you know, if you concede
22 the accuracy, and you're making a statement that
23 there's no defense here; right?
24 A Correct.
25 Q Urn, now, again, are you do you are are

1 you going o n on national this is national
2 TV; right?
3 A The Nancy Grace one is, yes.
4 Q Yeah. Were you anticipating that Brendan's

5 family was going to be watching again? And
6 and Brendan as well?
7 A I thought at some point they might. That they might

8 hear about the interview or something.
9 Q Okay. And and going on national TV and and
10 talking about the fact that there's making
11 statements like there's no defense, using words
12 like there's no defense, um, were you sending out
13 a message to the Dasseys?
14 A Not by that. I was pretty much stating the obvious.
15 I mean, it's if you take those two words and don't
16 look at the context about it being a condition, and
17 if it's accurate, and da da-da da-da, I mean, I
18 suppose if somebody wanted to misconstrue it, yes,
19 that could be taken that way. Certainly wasn't what
20 I was saying.
21 Q You you you see the possibility for it
22 being misconstrued?
23 A I guess by some someone who wanted to do that,
24 yes.
25 Q You you hadn't reviewed by this point you
144
!
1 hadn't reviewed that you still hadn't reviewed
2 that statement; right?
3 A No.
4 Q That's correct?
5 A That's a correct
6 Q That first statement?
7 A Correct.
8 Q All right. And had you reviewed any discovery?
9 A At the time of the interview I I'd seen the
10 Criminal Complaint, which was rather detailed.
11 Q Okay. But that's it?
12 A I believe so, yeah.
13 Q Yeah. There there was no transcript prepared
14 yet of of the March 1 interview; correct?
15 A Urn, correct. And I I don't think at that point I
16 have the CD either.
17 Q Okay. Now, your you know, your your
18 statement if well
19 THE COURT: Counsel, I think what we'll do
20 is we'll adjourn for lunch
21 ATTORNEY DVORAK: Okay.
22 THE COURT: at this point. We'll be
23 back at 1:15. I have a meeting at one o'clock that
24 I have to attend. See you then.
25 (Recess had at 12:10 p.m.)
145
1 (Reconvened at 1:16 p.m.)
2 THE COURT: You can proceed, Mr. Dvorak.
3 ATTORNEY DVORAK: Thank you, Judge.
4 Q (By Attorney Dvorak) We were talking about
5 March 17, if you want to refer to your voucher
6 just
7 . COURT REPORTER: Could you use the
8 microphone, please?
9 ATTORNEY DVORAK: Sure.
10 Q (By Attorney Dvorak) And I'd like to draw your
11 attention to Exhibit 322.
12 A I have it.
13 Q Okay. It's a Fox 11 broadcast on March 17;
14 right?
15 A Correct.
16 Q Okay. And you indicate you're you you tell
17 the press there that, in quote, you gave two
18 interviews a couple of days apart. One was
19 apparently quite general from the Complaint. The
20 other one much more extensive. I've been told
21 the tape is approximately four hours in length.
22 In any criminal case, the defendant would see if
23 there's a reasonable opportunity to keep the
24 statements he made out of evidence if there
25 wasn't compliance with his constitutional rights
1 or if it was involuntary for some reason/ right?
2 A Oh, correct.
3 Q Remember saying that?
4 A Yes.
5 Q Okay. The fact that Mr. Dassey had given two
6 statements wasn't out in the public yet, had it?
7 A That I'm not sure. I I don't know.
8 Q Okay. You didn't, atthetime,bother to check
9 that you made that statement?
10 A I'm just I'm not sure where I I got it. I was
11 pretty sure it was from the public. Certainly not
12 from Mr. Dassey.
13 Q Okay. Um, and how does saying that Mr. Dassey
14 confessed twice advance his case? What's your
15 A Well
16 Q thinking there?
17 A it didn't really say that he gave that he
18 confessed twice. It said that there were two two
19 statements. That would certainly, I guess, explain
20 the process.
21 Q Okay. So so your your thought was was
22 just helping the public understand the
23 investigative process?
24 A And and the process of representing somebody on a
25 case like this. That applied to a lot of the
147
1 comments that I made.
2 Q Okay. All right. And you also did a phone
3 conference with CNN and Headline News on that
4 day; right?
5 A Yes.
6 Q And, urn, had another conversation with CNN or
7 interview with Nancy Grace. That was .the one we
8 previously referred to. I'm sorry. All right.
9 So let's move to March 19.
10 A Okay.
11 Q Um, there's a a phone conference you you
12 note a phone conference with B. Dassey. Was that
13 Brendan or Barb? Do you remember?
14 A I I'm not sure. Most likely Barb.
15 Q Okay. So to this point you've talked to Brendan
16 once for about an hour; correct?
17 A Once alone in a conference at the jail, um, talking
18 to him in before and after court to some extent.
19 Q Okay. Those would have been brief conversations
20 I take it?
21 A The ones before
22 Q Before and after
23 A and after court
24 Q court. Yeah.
25 A Yes.
148
1 Q Okay. And and your voucher shows an e-mail to
2 J. Lee; right? J J. Lee's John Lee, again,
3 the reporter for Post Crescent ?
4 A Correct.
5 Q Okay. And on March 20, urn well, do do you
6 remember what you talked to John Lee about?
7 A I don't. Much of this, again, I wanted to make sure
8 they got the facts straight, understood what the
9 the law was that we were dealing with so that there
10 was no misinformation to the public, uh, which could
11 cause difficulties in dealing with Brendan's family,
12 as well as just I just think it's a professional
13 obligation to at least help the public understand the
14 process of how criminal case work.
15 Q Okay. Even if it's your own case?
16 A It it's hard to get in general terms. You know,
17 especially if you provide (unintelligible) they
18 should, I think, would have some some basic
19 understanding.
20 Q Was there some misunderstanding about how many
21 times a misunderstanding of the public about
22 how many times Brendan was interrogated?
23 A I
24 Q Or questioned?
25 A I don't know.
149
1 Q Okay. On March 20 you spent .4 hours on the
2 phone with the D.A.'s office and then a Milwaukee
3 Journal Sentinel reporter. Do you do you
4 remember what the call to the D.A.'s office was?
5 A I think it might have been regarding receiving
6 discovery or being able to observe some of the
7 discovery in the Calumet County D.A.'s Office.
8 Q Had yougotten discovery yet?
9 A That I'm not sure.
10 Q Okay. You hadn't or the tapes as far as you
11 know?
12 A I'm not sure the the
13 Q Okay.
14 A date of receipt exactly at this point. I see the
15 entry's on the 23rd so I may have gotten them that
16 day or the day before or something.
17 Q Okay. Urn, do you remember what you who
18 what you talked with Mike Nicholas about for the
19. .. Milwaukee Journal Sentinel!
20 A I think he wanted confirmation as to future court
21 dates, what the process is if the Judge wanted us to
22 go through in terms of filing motions, things of that
23 sort.
24 Q Okay. And you accommodated him him with that
25 information?
1 A Yeah. I wanted to make sure he got it straight.
2 Q Right. Um, and you reviewed a couple of criminal
3 cases, including Jerrell; right?

4 A Correct.
5 Q To familiarize yourself again with the standard
6 on voluntariness, etc.? Motion to suppress?
7 A Uh, correct.
8 Q Yeah. Um, and and you spent .6 hours on that;
9 right?
10 A Correct.
11 Q There was a phone conference with Dean Strang.
12 Do you remember what that was about?
13 A I think it was sort of an icebreaker sort of
14 conference telling us where they were at. I guess he
15 was trying probably trying to figure out where my
16 head was at on the case.
17 I think most of my responses to him was
18 that I was noncommittal, I'd have to see the
19 ... discovery, talk it oyer with ...Brendan, etc.....
20 But that there was nothing imminent in
21 terms of anything dealing with his client in
22 particular.
23 Q Okay. Certainly all the signals you've been
24 sending into the press were had to' do with
25 plea agreements?
151
1 A Well, I don't know if I was sending any signals.
2 That's a question they kept asking. I I said I
3 didn't initiate the contacts with the media. They
4 ' were just bombarding our office with phone calls. I
5 would return number of them.
6 Q But up until this point you've you've you
7 refer to number of times to the press about the
8 possibility of a plea agreement?
9 A Oh, sure.
10 Q And, um and and still up until this point
11 you'd only talked to Brendan once, and during
12 that conversation Brendan had told you that his
13 March 1 statement was not the truth, that he was
14 innocent, and that he wanted to take a polygraph
15 to prove that?
16 ATTORNEY FALLON: Objection. Asked and
17 answered.
18 THE COURT: Sustained.
19 ....... ..... ATTORNEY DVORAK: As it's. as to this....
20 time I don't think it's been asked and answered.
21 THE COURT: With that qualification, you
22 can answer it.
23 THE WITNESS: I believe so, yeah.
24 Q (By Attorney Dvorak) Okay. Then on two days
25 later, March 22, your work on the case amounted

1 to a apparently a phone conference with K.
2 Sanger (phonetic) of Dateline?
3 A Correct.
4 Q Okay. The next day, the 23rd, you know if
5 it's the same person or not, but you have a phone
6 conference with K. Singer (phonetic); right?
7 A Yes. I I believe it probably was. She was I
8 think she's confirming some procedural information or
9 something.
10 Q Okay. But it also notes that you've you're
11 now beginning to review the tapes?
12 A Correct.
13 Q Right? Okay. So this is the first time that
14 that you've reviewed any of the tapes?
15 A Correct.
16 Q All right. And
17 A I'm not sure if it was a tape or a CD. Maybe it was.
18 I I'm not sure.
,19. Q..' Okay..... ......... ... .
20 A May have been a C but it was I believe it was
21 a I'm just not sure, tell you the truth.
22 Q Fair enough. Whatever it was, it was a an
23 audio with respect to the February 27 interview;
24 right?
25 A Yeah. I believe that was audio only. That's maybe

why there's a difference between that one and some of
2 the later ones.
3 Q Okay. Um, and did you have allright. And
4 and and when you did that, you were did you
5 start making notes on that?
6 A Yeah. As the tape was being -- being played I would
7 make some notes.
8 Q Okay. And on March 24, uh, you got an e-mail
9 from Mr. Kratz; right?
10 A Um, I did.
11 Q And I'll draw your attention to Exhibit 343.
12 A I have it in front of me.
13 Q Okay. Had a chance to look at it?
14 A Yes.
15 Q Okay. Um, I just want to get clear at this point
16 on the the third item that that starts

17 says the transcripts will be done by the um,
18 soon.
19 .......Um, do you. .recall, what discovery you had....

20 to this point? Did you did you have let me
21 ask it this way:
22 Did you have everything, uh all the

23 discovery related to your case as far as you
24 know?
25 A I'm not sure. Most likely it was more than simply

1 the two tapes. There may have been some paper
2 discovery that I'm I'm just not sure what what
3 else I 'd have.
4 Q Was were there any forensics reports or
5 anything? You recall seeing any of that?
6 A I I don't.
7 Q Okay.
8 A Not at this point.
9 Q All right. The the fifth item well, he
10 he mentions a box of discovery and invites you to
11 come in. Did you did you do that?
12 A Eventually I did, yes. It it was a lot of
13 photographs taken at the scene of the Avery compound,
14 uh, photographs seized from Steve Avery's possession,
15 including pictures of his girlfriend in various
16 stages of undress and and some other things.
17 Q Okay. And and did you have a a copies
18 made of that for yourself?
.19, A. Not. --.not of the stuff that, was in.Kratz's office..
20 that I had viewed of that nature. Stuff that applied
21 strictly to to Steve Avery.
22 I think I received some reports
23 generally on the search of the Avery compound and
24 their interview process and everything else that
25 started with beginning of the case. But this
155
L,
i
i
1 stuff was as I looked at it, I think I made
2 some some notes as to what was in there.
3 But I didnt see, frankly, any use of it
4 for for us, that I needed to have it in my
5 possession. It might something came up later,
6 of course, we could could get it.
7 But I didn't see it as something I
8 needed to keep in my office.
9 Q So so your in in your view it wasnt
10 necessary that you have a copy of it?
11 A Not not at that time, no.
12 Q Okay. And and what you know what was in there
13 were were photographs of the scene?
14 A There were some aerial photographs, all kinds of
15 stuff like that, that certainly was was important
16 in establishing that a crime took place but didn't
17 really deal directly to to Brendan's involvement
18 in it,
i9_ Q Okay.. So.from the statement., that you had. read
20 when you reviewed those statements you didn1t
21 think that any of that evidence had any relevance
22 to what Brendans statement was?
23 A I guess in a sense, yes. I mean, in a general sense,
24 of course, it had some relevance in which might come
25 in if the case went to trial, but I didn't see any

1 need at that time immediately to request copies of
2 it.
3 Q You didnt expect that the case was going to go
4 to trial at this point?
5 A At that point I wasn't sure.
6 Q Okay. Now well, urn, but it also at this
7 point Brendan was saying that he was not guilty
8 and he didn't do anything. Were you were you
9 focused on on trying to determine that?
10 A Well, at this point I hadnt reviewed his his
11 statement yet. Including the the tapes. So I
12 guess at that point I really wasn't focused on I
13 think I I looked as I I -- I'd gone when
14 I later went started going through the discovery,
15 I worked particularly on the most critical element
16 pertaining to Brendan which was the timeline of
17 activity that occurred the afternoon and evening of
18 October 31, 2005, and accounting for where Brendan
1.9 .... was at various times. But.. .... .....
20 Q What about you so you did you you
21 didn't look at anything that related to physical
22 evidence?
23 A I would have read the descriptions of what was done,
24 that was in thenarratives done by the law
25 enforcement agencies.
1 Q Okay. All right. And then the fifth paragraph,
2 it says:
3 "If Avery is granted a prelim on his new
4 charges of sexual assault, false imprisonment,
5 and kidnapping, your client will be called as a
6 witness, and I assume granted use immunity for
7 that hearing only. You can discuss that with him
8 if it comes about. It's set for 4-13. If it
9 happens at all, Judge Willis needs to decide that
10 issue."
11 Urn, did you have any discussions with
12 Mr. Kratz prior to receiving this about Brendan
13 testifying?
14 A Not not about testifying at the prelim for for
15 Avery, no. -
16 Q What about Mr. what about Brendan testifying
17 at all? Had you had discussions with him about
18 that?
19 A ... I think I.probably did. I. think I... we had had. some
20 discussions. I said I think I understand what the
21 State would be coming from in this case if you're
22 going to I assume at some point you're going to
23 make us a plea offer, because the State does that in
24 virtually any case of any type, and I'm assuming that
25 any plea offer would be conditioned on Mr. Dassey
158
1 testifying truthfully against Mr. Avery.
2 Q Had you discussed the possibility of Brendan
3 testifying against Steven' with with Brendan?
4 A At some point certainly I told Brendan about
5 generally what would be happening, or discussable, or
6 within the realm of the possible if we went the plea
7 bargaining route, and that that would probably be a
8 condition of a of any plea bargain.
9 Q Well, up to this point that would only have
10 happened at at your interview on March 10;
11 right? You hadn't talked to him other than that;
12 is that fair?
13 A I think yeah. That may be .true.
14 Q Did you view this as as as being good news?
15 The invitation by the State to have Brendan
16 testify against Steven Avery?
17 A I was actually concerned because it was awfully soon,
18 and I wasn't sure that that is what Brendan wanted
19 .... t o wanted to.,do. ..............
20 Uh, I thought I was pretty sure he
21 didn't want to, because he was pretty quiet,
22 noncommittal, and everything else about a lot of
23 things.
24 So I guess I was concerned about it
25 being so soon that that there'd be some real

1 problems with it, 'cause I really hadn't seen
2 Brendan that much. I hadn't reviewed all the
3 discovery yet. I hadn't sent Brendan I guess,
4 what I ended up doing, reviewing most of the
5 discovery, sending Brendan letters kind of
6 summarizing what was in it.
7 So, yeah, I I was concerned this was
8 happening pretty soon. Might not be prepared to
9 do it.
10 Q Urn, and and the final thing that Mr. Kratz
11 does is invite you invites you to get
12 information for him from Brendan; right?
13 A Yes.
14 Q Okay. Had you had any given any signals to
15 Mr. Kratz that you were willing to do that?
16 A Not at that point, no.
17 Q Okay. You don't think your statements in the
18 press may have signaled that?
19 A . No. . ............ ...... ......
20 Q The things that you were signaling to Brendan's
21 family?
22 A Not about dis not about finding physical evidence,
23 no. I I didn't I assumed that the State had
24 thoroughly searched everything and come up with
25 everything they would have possibly been able to come

1 up with respect to Brendan.
2 There'd been some search warrants around
3 the time of his arrest. Searches of his house.
4 Some other things. I I didnt think there was
5 any physical evidence that we'd be able to
6 present if we wanted to.
7 Q All right. But this certainly gave you a signal
8 what the State would have been looking for; .
9 right?
10 A Yes. I mean, they're always hopeful to get more
11 evidence.
12 Q And and they and they were hopeful to get
13 it from Brendan?
14 A Right.
15 Q All right. And he also invites discussions about
16 plea potentials, um, after the five the May 4
17 motion? Did you
18 A Yes.
19 Q did. you respond to that? Did you call him up

20 after you got this and to talk about it?
21 A I don't recall if I did or not or if I e-mailed him
22 Q Did you would you have made notes of that?
23 A If there was something specific, yes. I I
24 certainly don't I don't recall at this point.
25 Q Okay. Dp until this point had you given any
1 thought to Brendan's request to take a polygraph
2 test?
3 A I had. I have, professionally, a negative opinion
4 about polygraphs. I've had truthful clients flunk
5 them and untruthful
6 Q My
7 A clients pass them.
8 Q My my only question is whether or not you had
9 given any thought to or if given any
10 thought to complying
11 COURT REPORTER: One moment, please.
12 THE COURT: Hold up a second.
13 (Court reporter's computer
14 malfunctioned.)
15 COURT REPORTER: Okay. Please start
16 from where you said:
17 "My only question is whether or not you
18 had given any thought to or if given any
19 thought to complying..."
20 Q (By Attorney Dvorak) The the the question
21 I want the answer to is did you do anything with
22 respect to Brendan's request to take a polygraph
23 test up to this point?
24 A I'm not sure when the exact timing was, but I know
25 Brendan had to ask me a second time before I did it.

1 And then at that point I acquiesced and went out and
2 tried to make the. arrangements.
3 Q Right. And you hadn't seen him twice. I mean,
4 up until this point you've talked to Brendan for
5 about an hour?
6 A Correct.
7 Q Urn, the March 25, the next day, you you
8 you, urn, listen to the tapes; right? You listen
9 to tape four and you prepare notes?
10 A Correct.
11 Q And you listen to tapes one and two of the
12 March 1 and and I'm when I use the word
13 "tapes" I'm talking about whether they're
14 A Right.
15 Q CDs, DVDs, whatever they may be just for
16 A I called
17 Q convenience sake.
18 A them tapes so it's if it was a mistake, it was
19. ... mine........ ... ....
20 Q Dm, and I just want to focus on the March 1
21 issue. Urn, reviewing the March 1 statements, you
22 reviewed one and two, and it's my understanding
23 you couldn't get tape three to work; right?
24 A That may have been the case.
25 Q Okay. You, uh on the next day you you send

1 an e-mail to Mr. Kratz, uh, to the effect that
2 the tape doesn't work. Do you recall that?
3 A At this point, no.
4 Q Okay. Um, the you sent a letter to Brendan
5 also. Do you remember what was in that letter?
6 We can't find it. Do you have any idea? Do you
7 have it with you by any chance?
8 A I I don't . Um
9 Q This this would have been after you've
10 A Right.
11 Q reviewed the tapes?
12 A Any letters I would have put in the materials that
13 were forwarded to the next attorney. Looking at the
14 context I probably would have told him a summary of
15 what I saw in the tapes. Just looking at the length
16 of the letter that's probably what it was.
17 Q All right. Uh, well, it took you .2 to to do
18 the letter.
19 A... Oh. Right.. It was -- would.have been relatively
20 short.
21 Q Right. Um, March 27 you get a an e-mail from
22 Kratz, um, regarding tape three and a phone
23 conference. Do you recall what that e-mail was
24 about?
25 A I think it was just about how he was going to take

1 care of the problem.
2 Q Take care of the problem with tape three?
3 A Correct.
4 Q Okay. And your your notes say that you you

5 got around to reviewing tape three.
6 A I might have.
7 Q Okay.
8 A I'm sure if I got it Idid.
9 Q Do you remember the significance of tape three on
10 the on the March 1 interrogation?
11 A No, I don't. It was a short one as compared to what
12 I'd seen before. It might have been from the time
13 that they left the I believe it was called the
14 Mishicot Inn. I forgot. From the time they left,
15 though, the place where Brendan was, to the time they
16 got to the sheriff's department for the interview.
17 Q Well, that's the the the substance of
18 that tape is is is Brendan's retraction?
19 ... . Brendan - : Barb . Barb.comes in, and, uh. and
20 at some point during the conversation between
21 Barb and Brendan, Brendan Barb wants to know
22 why he she said those things if they weren't
23 true, and Brendan said, "They got into my head."
24 Do you remember that?
25 A I do.
1
2 ATTORNEY FALLON: Your Honor, from here
3 on I'm going to impose an objection and simply
4 ask that the questions be stated in what happened
5 as opposed to stating it with a legal conclusion.
6 It's his witness. It's not cross-examination.
7 THE COURT: Fair enough.
8 ATTORNEY DVORAK: He's well, I I
9 think, Judge, in all fairness, it's he's an
10 adverse witness under the circumstances.
11 THE COURT: I understand that and you
12 certainly have more leeway to examine him. But by
13 the same token we are starting examinations with
14 opinions.
15 Q (By Attorney Dvorak)You had a phone conference,
16 according to your notes, on this date, also, with
17 Mr. Dedering; right?
18 A Yes.
19 Q... And who's John Dedering?.........
20 A I believe he's a police officer.
21 Q Okay. He he was one one of the police
22 officers that was on this case; right?
23 A Right.
24 Q Do you remember what that conversation was about?
25 A I think it was about getting copies of some discovery
166
or something like that.
2 Q You don't remember?
3 A I don't remember.
4 Q Okay. And you didn't make any note of that?
5 A No.
6 Q All right. Dm, you also had another phone
7 conference with John Lee on that day?
8 A Yes.
9 Q March 27?
10 A Yes.
11 Q You reviewed tape three? You prepared some notes
12 of that; right?
13 A Yes.
14 Q Um
15 ATTORNEY DVORAK: Excuse me, Judge.
16 Q (By Attorney Dvorak) I'd like you to look at
17 Exhibit 359, please. Oops. And the second to
18 last page.
19 A . .. The one. where ..it.mentions. .about tape three..-..Reviewed
20 3-
21 Q ... .Yes.
22 A --- 27-
23 Q Right.
24 A --- 06
25 Q Those
1
2 Q would be your notes relating to your review of

3 tape three?
4 A Correct.
5 Q And the date next to, 3-27, would refer to the
6 date that you took those notes; right?

7 A Yes.
8 Q Do you make any notation in your notes on this
9 tape, of Brendan saying, "They got into my head."?
10 A I don't think I did.
11 Q Okay. Do you think that would be a something
12 to investigate on a motion to suppress?
13 A I suppose would have some relevance, yes.
14 Q Um, on March 28, your work on that day is a phone
15 conference and a TV interview with TV-2?
16 A Right.
17 Q Okay. Um, I'd like you to look at Exhibit 323
18 and 324.
19 A I'm looking at 3 okay....... .
20 Q Um, you you make the statement to the press
21 that this statement is the strongest and only
22 piece of evidence?
23 A Yes.
24 Q Okay. Um, andso based on your review of the
25 evidence to this point that's what your opinion

1 of the of that's what your assessment is?
2 A I suppose "only" might be an overstatement, but
3 certainly "strongest" is correct.
4 Q Well, on your review of the evidence to date did
5 you come upon any physical evidence that
6 corroborated what Brendan said?
7 A Not that I knew of. Not of a careful examination of
8 the Avery compound. I (unintelligible) if there was,
9 you know, circumstantial evidence as to where he was
10 when, uh, during the evening of October 31 that I
11 thought was of greatest relevance.
12 Q And and or forensic evidence
13 A Right.
14 q for that matter. There
15 A Right.
16 Q was no forensic evidence sorry. We're
17 talking over each other. Apologize. There was
18 no forensic evidence that corroborated anything
.19 that Brendan had said that you had seen to this
20 point; correct?
21 A That that is correct, in terms of DNA,
22 fingerprints, things like that, yes.
23 Q Right. Um, and you also make the statement that
24 if thejudge throwsout Dassey'sconfession would
25 jeopardize the prosecution's case; right?

1 A Correct.
2 Q You got motions due in, what, another week or so?
3 A I don't know what the deadline was.
4 Q Okay. Your hearing is is April 5, I believe?
5 A Yes.
6 Q All right. May May 4. You have a hearing
7 coming up on May 4? I'm sorry. Sound right?
8 A Right.
9 Q Okay. Urn, and I want you to look now at Exhibit
10 No. 324.
11 A Right.
12 Q In yourconversation here, um and I'm want
13 you to look at page two of of that exhibit.
14 ATTORNEY FALLON: This is 324, Counsel?
15 ATTORNEY DVORAK: Yes, it is.
17 Q (By Attorney Dvorak) You you state here that
18 there were some techniques used here that are
19' pretty .standard and. quite legitimate and .in terms,
20 of making the suspect feel police know everything
21 and the suspect should tell him because the
22 police already know it; right?
23 A Yes.
24 Q Okay. So you're you recognize here that
25 that there are have you had you've had

1 confession cases before I assume?
2 A Yes.
3 Q Okay. And, um, have you ever consulted with an
4 expert in confession cases?
5 A Not prior to this one, no.
6 Q Okay. Had you -- had you did you consult with
7 an expert on confessions in this case?
8 A Yes. Um, after the motion to suppress was denied, I
9 believe there was a reference at some point I
10 talked to a Mr. a Dr. Thompson after talking to
11 Drizin and some other folks about possible
12 references. It would have occurred after the
13 suppression hearing was over.
14 Q All right. So but so prior to the
15 suppression hearing you had not contemplated
16 consulting and/or calling any kind of an expert?
17 A Well, not on the issue of characteristics of false
18 confessions. There was obviously the need to bring
19- in the underlying evidence of Brendan's intelligence,
20 level and so forth from his school records, and some
21 psychological evidence of that sort is one of the
22 many factors a judge has to consider on a motion to
23 suppress.
24 Q Let me let me ask --
25 A Sure.
171
i _
i
1 Q you this: You you did not consider,

2 certainly at least to this point, or from what
3 you're saying at all, you did not consider, um,
4 the or calling a or or consulting with a
5 con a an expert on interrogation techniques
6 as it relates to voluntariness?
7 A I remember certainly mentally thinking about the
8 possibility of a psychologist or some expert witness
9 and whether that would be beneficial or not. But I
10 certainly would decided that at least it was my
11 opinion it would not have been. Just based on just
12 general background knowledge. I didn't don't
13 think I specifically documented it anywhere.
14 But I I didn't think it generally was
15 possible to find a witness that would say Brendan
16 could not have understood his Miranda, rights
17 given, you know, his, um, mental status.
18 Q Okay. So so what you're saying is that you
19 you considered it but you you are you
20 saying you considered it but rejected it?
21 A Yes. I didn't think it would be effective on the
22 suppression issue.
23 Q What about, um, issues of, you know, what the
24 definition of psychological coercion is and
25 and what tactics are coercive or not coercive?

1 A Based on what was in the tape and the sort of tactics
2 I observed there, I didn't think there was an expert
3 that was going to
4 Q Okay.
5 A would say something like that. But I didn't ask
6 one.
7 Q Okay. Um excuse me a second. Urn, on
8 March 29, you conducted a two more phone
9 conferences with the press. Pete at NBC 26 and
10 Singer at from Dateline; right?
11 A Right.
12 Q And you spent maybe 40 minutes or 45 minutes
13 reviewing reports?
14 A Correct.
15 Q Um, do you remember what those reports were or
16 what they had to do with?
17 A Not specifically, no.
18 Q Okay. Um, by the way these these your
19 voucher accurately reflects the what you did ....
20 on on the case and and and the time you
21 put on it; right?
22 A It does.
23 Q Okay. Um, on March 30, the next day, your only
24 work on the case would have been an e-mail with
25 Aaron Keller; right? Again, a news person?

1 A Right.
2 Q On March 31, urn, your only work on the case would
3 have been two e-mails with Keller and, um, an
4 interview with TV-26; right?
5 A Right.
6 Q And on April 1, um, your only work on the case
7 would have been with Becky from TV-11, an
8 interview with TV-11. You reviewed a a
9 Dateline, apparently. Was that a broadcast? Is
10 that what that means?
11 A Yes. I don't recall specifically which one that was.
12 Q Okay.
13 A Um
14 Q Yes or no would be fine.
15 A Yeah.
16 Q Okay. And, um, so you watched the TV-11 news
17 cast? I assume you watched the the news cast
18 of your interview? That's what you're talking
19 ... about?
20 A No, I don't think so. I think the Dateline there was
21 a a feature on the Avery family, which I know I
22 watched somewhat. I'm not surewhen it was.
23 Q Okay.
24 A Just describing, you know, theirrelationship with
25 the Manitowoc community and so forth.
174
1 Q Okay.
2 A I'm not sure if that was it or not.
3 Q All right. And and, also, you had a an
4 e-mail with Aaron Keller again; right?
5 A Right.
6 Q Now, on the interview on April 1 with Fox 11
7 and I want to draw your attention to Exhibit 325.
8 A Okay. I remember that.
9 Q Okay. This had to do apparently Steven Avery
10 had made some comment in the press about Brendan
11 possibly being someone who could be coerced into
12 making a statement; right?
13 A Among other things
14 Q Okay.
15 A yes.
16 Q And well, there's a quote here. There's
17 second paragraph on first page. And and this
18 is from Avery, apparently.
19 .... "I know he was, um,.that is, coerced.,
20 into making a statement, 'cause they ain't no
21 evidence to back it up. They took everything out
22 of the trailer and they ain't going to find
23 nothing."
24 And then it's a quote from you that
25 you've reviewed the four-hour videotape from
175
1 Dassey and you don't see it that way. Uh, didn't
2 appear to me that they were putting words in his
3 mouth which is kind of what Avery suggests;
4 right?
5 A Correct.
6 Q Okay. Now, after having reviewed the February 27
7 tape, as well as the March 1 tape, you're saying
8 you didn't see any evidence at all of suggestive
9 questioning or contamination by the police of the
10 interrogation?
11 A I would have to say, urn, yeah, it appeared to me that
12 they took great pains to try to make the details in
13 that interview come out from from Brendan and not'
14 something that was suggested by them. Urn, relatively
15 low number of of leading questions, urn, and -- and
16 things of that sort that you'd might expect to to
17 have from a heated high power high-powered
18 interrogation.
19 Q So by I I guess what I'm -- your what...
20 you're saying here is is or, you know, what

21 you're sending out i s is that, urn,
22 Mr. Dassey's confession is is a good
23 confession?
24 A Well, I was saying that it didn't certainly appear to
25 be something that was shoved into his brain like
176
1 Avery had suggested.
2 Q Well, let's
3 A And and I. was putting out the message to Avery
4 that I thought he was trying to intimidate Bran
5 Brendan Dassey through the media.
6 Q Okay. But what what message do you think it
7 was sending to Brendan?
8 A Which -- which one?
9 Q Well, the the the message that you're
10 saying the confession looks pretty good to me?
11 A Nothing I hadn't already told him. I think at that
12 point that was that was the case.
13 Q So you had you had told him already that
14 that you thought this was a good confession?
15 A Yes.
16 Q And that was your -- your position going into
17 preparing the motion?
18 A I I believe I told him I thought the chances of
1-9 the motion to suppress being granted were not..
20 terribly good. I'd give it my best professional
21 shot.
22 I'd I had a transcript. I could
23 would apply the case law to the facts of the
24 case. Anything that looked questionable at all
25 I'd put in the motion and argue it. But I wasn't
177
1 count -- told him don't don't count on it
2 being granted.
3 Q Urn, now, the were you aware of the
4 significance of the of the March 1, or at
5 least significance of part of the March 1
6 confession in terms of physical evidence?
7 A Which which part of it? I'm not sure
8 Q Well, where they
9 A what you're
10 Q where they talk about
11 A referring to.
12 Q shooting in the head. Do you remember that?
13 A At this point I
14 Q Okay.
15 A guess I'm just not sure.
16 Q I I just want to play
17 A Yeah. .
18 Q a
19 A Sure. ........
20 Q five. I just want to play clip five. Or four
21 and five.
22 ATTORNEY FALLON: Clip and where
23 what is that reference to, Counsel?

24 ATTORNEY DVORAK: Um, it identifies 315.
25 ATTORNEY FALLON: Exhibit 315?

1 ATTORNEY DVORAK: Yes.
3 ATTORNEY DVORAK: Page nine.
4 (Wherein clip is played.)
5 Q (By Attorney Dvorak) Does that sound like
6 putting words into somebody's mouth? Certainly
7 is
8 A It'd certainly be a leading
9 Q suggesting.
10 COURT REPORTER: Excuse me.
11 THE COURT: Okay. You ask the question,
12 you wait 'til he asks it, then you can answer it,
13 okay?
14 THE WITNESS: Okay.
15 Q (By Attorney Dvorak) Oh, I um, were you
16 were you aware that there had been a -- a fairly,
17 recent discovery in the case that had some
18 significance with respect to being shot in the
19 head?- - -- -
20 A It didn't stick out in my.mind, no.
21 Q Okay. So you weren't aware of the significance
22 of that question at the time that you listened to
23 the tape?
24 A Correct.
25 Q Or at the time that you filed the motion?

1 A Correct.
2 Q Okay. Um, and Steven Avery says that he feels
3 that didn't think his nephew was very smart?
4 It'd be awfully easy for someone in law.
5 enforcement to coerce him? And you refute that
6 statement, too; right? In this interview?
7 A Yes.
8 Q Okay. So, you're you're telling the press and
9 world at this point that you don't think that
10 Mr. that your your client is someone who's
11 likely to be coerced by law enforcement? What
12 you say is that I think that would be inaccurate;
13 correct?
14 A Right. Whatever I said, I would say. What the
15 meaning was behind, I'm not totally sure.
16 Q Okay. Um, and then you talk about, um, some
17 Avery trying to intimidate or influence a
18 witness, uh, as showing some consciousness of
19 guilt? ......
20 Um, again, do you understand that the
21 implication that's behind that is that Brendan's
22 confession is is accurate and that he may be
23 testifying that that signal gets sent?
25 THE COURT: Overruled. You can answer it

if you have an answer.
THE WITNESS: I'm not sure what spin
somebody would want to put on that. I'm not
(By Attorney Dvorak) Now and again, this
this whole discussion that we're talking about
here precedes the motion to suppress? Precedes
your filing on the motion to suppress; right?
It probably did. I don't know.
Okay. Urn, the tenor of this discussion would
suggest that not only is Avery guilty, but
Brendan's complicit in it?
I don't know if that's conclusions anybody would draw
or not. The words were the words and...
Well, if you're if you're saying in this
conversation that Brendan is not someone who's
easily coerced, um, or someone who would be
subject to having words put in his mouth, you're
in ; at least backhandedly vouching for the
accuracy of the confession; fair?
I was no. I think it just act I'm just
vouching for Brendan's general personal
characteristics.
So what you're saying in advance of the hearing
is that Brendan's personal characteristics are
such that he's not someone who would be subject

1 to having someone put words in his mouth or
2 otherwise being coerced?
3 A I I don't know what spin you'd put on it.
4 Q All right.
5 A Certainly wasn't directed at Judge Fox.
6 Q Um, yeah. Exactly. On April 2, you again,
7 your work on the case was an e-mail to the press
8 and a phone conference with a Jeanette from TV-2?
9 A Yes.
10 Q All right. Then on April 2 you indicate that
11 you've you now have finally reviewed the rest
12 of the initial paper discovery; right?
13 A Right.
14 Q And you send an e-mail to Mr. Kratz and you spend
15 about you spent 4.2 hours doing that?
16 A Right.
17 Q Um, and there is also you've also talked to
18 the press on April 2, I believe. I refer your
19- .. you to Exhibit 326. This is.a a fairly .long
20 one. The first several pages of it is something
21 of a tribute to Teresa, the Teresa Halbach
22 Memorial Fund?
23 A Uh-hmm.
24 Q And if you go to the last page?
25 A Right.
1 Q And the second to laugh last paragraph, you're
2 quoted as saying, well, Kachinsky does believe
3 Dassey has some intellectual deficits. He
4 believes Brendan has a reasonably good ability to
5 recall events he participated in. That accurate?
6 A Yes, it is.
7 Q Okay. So it the next day, April 3, you
8 you let's back up a minute. Op up until
9 that point, urn, you have spent well, let me
10 see if I you have spent, if if if I'm
11 doing my math right, and let me know if I'm
12 close, urn, you've spent about an hour with your
13 client and probably about at least ten hours with
14 the press? Sound about right?
15 A That that could be. I m not sure if I saw him,
16 you know, when I talked to him between that, and
17 there was at least one letter, but...
18 Q Right.
19 A .. that would be close.
20 Q And there was a ;

there was a jail visit that
21 you did on on April 3?
22 A Right.
23 Q Okay. And did you, again, contact the press

24 prior to going out there?
25 A No.
1 Q Okay. But they they did do a a did have
2 an interview on that day with the press; right?
3 A I believe so. I think they caught me probably on the
4 way out of the detention center. They may have
5 called my office saying they wanted to talk to me and
6 somebody told them where I was.
7 Q Okay. So
8 A I don't know exactly.
9 Q So, urn, once again, your going to visit Brendan
10 was a newsworthy event?
11 A I was it I don't know. I didn't make the
12 decision. I these calls were all initiated by the
13 media.
14 Q Okay. Urn, you had a it shows you had a phone
15 conference with TV-11? Urn, do you know how long
16 that conference was?
17 A Probably very short. Five five minutes at the
18 most.
19. Q ... Okay. So it .It's. it's kind of bundled up.....
20 on your voucher here. The the phone
21 conference with TV-11 and your conference with
22 Brendan Dassey at the Sheboygan Detention Center.
23 And you got 1.4 hours. So you're saying maybe
24 you saw Brendan for about an hour and fifteen
25 minutes?
184
1 A I might have. I don't recall.
2 Q Okay. Well, does that sound about right? You
3 spent about an hour and fifteen minutes with him
4 so far? Or on this
5 A On that
6 Q date?
7 A particular occasion
8 Q Yeah.
9 A that would be about the normal length. Brendan
10 not real talkative, so...
11 Q Okay. Urn, and and
12 ATTORNEY FALLON: If I may excuse me,
13 Counsel. When he says an hour and fifteen
14 minutes, are we referring to April 3 or
16 ATTORNEY FALLON: is that in out
17 of the hour and 40?
18 ATTORNEY DVORAK: Well, it's 1.4. It
19 says
20 ATTORNEY FALLON: Well excuse me
21 ATTORNEY DVORAK: goes into tenths.
22 ATTORNEY FALLON: 1.4. You're right.
24 ATTORNEY FALLON: Okay. All right. I
25 just wanted to make sure that we're on the same

1
3 Q (By Attorney Dvorak) And it's at this point
4 where you first come upon Michael O'Kelly;
5 correct?
6 A I believe so. I think this may have been the time
7 Brendan made a second request for the polygraph.
8 Q Right. Once again, um, you go to you go there
9 to interview Brendan and Brendan tells you that
10 the March 1 statement and the statements that he
11 made inculpating himself were not true; right?
12 A I don't know. Didn't quite put it that way, but I
13 think he was kind of non-communicative. But he
14 definitely told me to get a polygraph again.
15 Q Well, did he did he tell you that on this
16 occasion is there any question in your mind that
17 he told you that he was innocent?
18 A He didn't use those words I don't recall, but
19. Q Well, okay. Was the message that he communicated
20 to you was that he didn't do this?
21 A I think at that time, yeah, he said, I didn't do
22 this. I want a polygraph. It it sounded kind of
23 rote to me, but certainly I was going to
24 Q So my
25 A grant his request.

1 Q my my question to you is: Did, what
2 Brendan tell you, that he didn't he was not
3 involved in this? Was that the message that he
4 was telling you?
5 A Yes.
6 Q Okay. Whatever words he used, whatever the words
7 may have been, his message to you was, I'm not
8 guilty. I want a jury trial.
9 A He definitely didn't use the word jury trial. But he
10 said he wanted a polygraph.
11 Q Well, okay. I guess one flows from the other,
12 and maybe he didn't use the word jury trial, but
13 he did at least say
14 ATTORNEY FALLON: Obj ection.
15 THE COURT: Yeah. Yeah. Keep the comments
16 the the judgment comments to yourself, Counsel *
17 ATTORNEY DVORAK: I'm sorry.
18 THE COURT: at this time.
.19. Q . (By Attorney Dvorak) And and tied in with
20 that was, uh, I want to take a polygraph test;
21 right?
22 A Yes.
23 Q Okay. So how did you come upon Michael O'Kelly?
24 A I did not know any polygraph examiners in the
25 Sheboygan area. Urn, I knew one in Green Bay but he

1 had charged $500. I knew the State Public Defender
2 would only authorize 350.
3 Um, so I just I did a search engine
4 for polygraph examiners in Sheboygan, and I think
5 it was on Superpages or something. One of those
6 internet an internet directory rather than
7 Google. And Mr. O'Kelly was about the only name
8 that came up.
9 Q Okay. And what are you saying okay. But,
10 in what made you decide to to contact
11 Mr. O'Kelly? And doesn't sound like there was
12 anybody else to compare him to
13 A Correct.
14 Q is that what you're saying?
15 A Right. In that specific area. That would might
16 possibly be willing to work at the rate the State

17 Public Defender would pay.
18 Q Okay. So what did you do once and and did

19 you do any follow-up to. check out. his. background
20 or anything?
21 A No.
22 Q Okay. Um, so you you saw him on Superpages or

23 wherever you made and saw that he did
24 polygraphs? You thought you'd give him a call
25 and see if he'd be willing to do this for 350
188
1 bucks?
2 A I dont know if I called
3 Q (Unintelligible.)
4 A him. I think I e-mailed him. But told him what
5 the conditions might be. If he was interested, uh,

6 etc.
7 Q Okay.
8 ATTORNEY DVORAK: One second, Judge.
9 Can I have one second, Judge?

11 Q (By Attorney Dvorak) I want to refer you to
12 I'm sorry Exhibit 347.
13 A Okay.
14 Q The this is a a letter that you sent to

15 Brendan following your interview; right?
16 A Following the April 3 interview?

17 Q It's the same day
18 A Correct.
19 Q as the.interview -- ..
20 A Yes.
21 Q right? Okay. And you tell Brendan that
22 you've located a polygraph examiner and that he's
23 coming. You also discuss some of the some of
24 the facts in the case.
25 I want to draw your attention to the
1 second to the last paragraph. And in the middle
2 of that paragraph you write Brendan:
3 "But, once again, the videotape is
4 pretty convincing that you were being truthful on
5 March 1. You need to stop thinking about who
6 benefits from what you say and just think about

7 what really happened.
8 If a judge or jury thinks you are lying,
9 cover up for Steve or yourself, you are writing
10 yourself a sentence to life imprisonment without
11 parole.
12 If you accept responsibility for what
13 you did and cooperate in Steve's case, at least
14 one of the Halbachs will ask Judge Fox to go
15 relatively easy on you."
16 Right?
17 A Correct.
18 Q Okay. Brendan, I just told you that he's not
19 guilty; right?
20 A Yes.
21 Q And you're sending him a letter saying, I don't
22 believe you?
24 THE WITNESS: I
25 THE COURT: Well, the letter speaks for

1 itself, Counsel.
2 Q (By Attorney Dvorak) And, um and the letter
3 also talks about
4 ATTORNEY FALLON: My object just so
5 the record was clear, my objection was to the
6 form. I don't mind Counsel inquiring as to what
7 his stated intent. It's just that my question
8 was the form and the opinionation of the
9 question.
10 THE COURT: Objection is noted.
11 ATTORNEY DVORAK: All right.
12 Q (By Attorney Dvorak) Do you do you suppose
13 that do you suppose that might be part of what
14 Brendan had in mind? That and and the
15 messages he was seeing on TV part of what he had
16 in mind when Brendan wrote the letter to the
17 judge on June 30 asking for a new lawyer?
18 A I have no idea.
19 QOkay. Now, um, let's see. You - - d i d you
20 have do you recall what your next conversation
21 was with O'Kelly?
22 A Whenever it was, it would have been on my invoice.
23 Q Okay. On April 4, um, the only work you do on
24 the case is a phone conference with somebody from
25 Inside Edition?
191
1 A Correct.
2 Q All right. Urn, and on April 5, you travel to the
3 D.A.'s office to have a conference with Mr. Kratz
4 and to review some evidence; right?
5 A Correct.
6 Q Do you recall what you looked at?
7 A Uh, this was the stuff primarily pertaining only to
8 Steve. Pictures. Some other stuff that was
9 pictures taken from surveillance air crafts.
10 Diagrams of the Avery property. Um, things seized
11 from Mr. Avery again. And pictures. Personal
12 pictures. Things like that.
13 Q What how how much volume of stuff are we
14 talking about that you looked at? Boxes? A
15 A I would say
16 Q box?
17 A three or fourbanker boxes worth of stuff.
18 Q Okay. Um, did you make copies of any of it? .
19 A No. .I- just made- some-notes. ..... ......
20 Q Okay. So you looked at it, made some-notes, and
21 moved on? Didn't make any copies?
22 A Correct.
23 Q Did you make an inventory of what was in there?
24 A No.
25 Q Um, and what did you talk to Mr. Kratz about on

1 that occasion?
2 A Probably just the procedures, progress of the case.
3 Nothing that I remember specifically.
4 Q Okay. There were there were no substantive
5 discussions about resolution of the case that you
6 recall?
7 A Not that I recall, no.
8 Q Any issues about discovery that you recall?
9 A Not that I recall.
10 Q Okay. Urn, by the way,up until this point had
11 you retained an investigator?
12 A Not until after no, not until after the polygraph.
13 Q Okay. And you also had a phone conference with a
14 guy named Bob Healey?
15 A Yes.
16 Q Is that a a news person?
17 A Yes.
18 Q Okay. Did did that person know that you had
19 - gone to the- D.A. '.s office? Do ......
20 A No.
21 Q you remember?
23 Q Okay. The next day you spend .2 hours on a
24 letter to Brendan, and a. half an hour in a phone
25 conference with or having, it appears,

1 apparently an in person conference with a news
2 reporter; right?
3 A Yes.
4 Q April 7 you got an e-mail from Mr. Kratz?
5 A Yes.
6 Q Um, I don't know'what that is. Do you remember
what that was about?
8 A No.
9 Q Okay. You don't have a copy of that?
10 A No.
11 Q Um, and that was your onlywork on the case on
12 that day?
13 A I think so, yeah.
14 Q All right. Um, and on April 8 you do some legal
15 research. It says, Mishicot School District, an
16 e-mail. The the legal research. What was
17 that about?
18 A I think it would have been how to obtain Brendan's
19 records from the school district to offer them into,
20 evidence at the suppression hearing.
21 Q Okay. And then you you sent an e-mail to a
22 psychologist and the teachers. I assume that
23 means at the school. The school psychologist?
24 A Correct.
25 Q Okay. April 11, um okay. Let's see 63.

1 The I i just have a question about Exhibit
2 63 if you can if you can look at that. That's
3 volume two. I'm not sure if you have that up
4 there, do you?
5 ATTORNEY NIRIDER: He does.

6 THE WITNESS: I do not.
7 Q (By Attorney Dvorak) Just to make it easier,
8 it's very short and my question's very short so
9 rather than take things apart. That's an e-mail
10 between you and Michael O'Kelly; right?
11 A I don't think it's a phone mes I don't think it's
12 an, e-mail. Urn
13 Q Whatever it is, it's communication between you
14 and O'Kelly?
15 A I believe so. Some some kind of something I
16 needed I felt it needed documented for some
17 reason.
18 Q Okay. It's it's about your your visit with
19 O'Kelly; right? Or I'm sorry. O'.Kelly.Vs.
20 going to give an information about where he needs
21 to be? It's it's an e-mail from O'Kelly to
22 you; is that right? Or a communication phone
23 message?
24 A I believe it's a phone message. Sometimes I get
25 messages from the the staff, and then I'll type

1 some more things on it for some reason or another,
2 uh, so I've got the information documented and
3 available, and then print it. That's
4 Q Okay.
5 A apparently what this was.
6 Q There's the address of the detention facility.
7 There is a note there that says, "Dassey wants to
8 do it on Sunday morning." Which is Easter?
9 A Yeah.
10 Q Right? And and the "it", I assume, is the
11 polygraph test?
12 A I think Dassey was referring generically to the
13 defense team. Really, more accurately, O'Kelly, um,
14 rather than Mr. Dassey feeling Easter was a kind of
15 day he'd want to do a polygraph. I think it dealt
16 with 0 O'Kelly's schedule and needing to arrange
17 for the Sheboygan County Jail to let Mr. O'Kelly in
18 to do his polygraph.
19 Q .. Right. And -that's why they have Captain
20 Schulte's (phonetic) phone number on there;
21 right?
22 A Correct.
23 Q Schielke (phonetic), rather?
24 A Yeah.
25
Schielke or did you somehow help set up the
2 the conference or the polygraph test on Easter
3 Sunday?
4 A Yeah. We did a fax, or an e-mail, or something to
5 him saying, you know, Michael O'Kelly's on the
6 defense team. Like to do it then. Urn, please let
7 him have a professional-type visit with Mr. Dassey.
8 Something like that.
9 Q Okay. So there was there obviously would need
10 to be some communication to alert them to the
11 fact that somebody was coming in, and that
12 that that it was a member of the defense team,
13 so that they could have a contact visit; right?
14 A Correct.
15 Q Okay. April 12, urn, it says meeting with
16 Synthesis Productions. What's Synthesis
17 Productions?
18 A That was Laurie Ricciardi. She was doing some kind
19 ... -of documentary on this case.. And I think that even
20 she I believe she's here today
21 Q Okay.
22 A outside of here. And she wanted some wanted to
23 go into my personal background, and other stuff, urn,
24 regarding what it was like to work on a case like
25 this.
1 Q All right. And you spent 2.9 hours with her;
2 correct? And and .5 hours you spent on other
3 issues related to the case; right? E-mail to
4 Kratz and Mike O'Kelly, .3
5 A Oh,
6 Q hours?
7 A On that particular day, yes.
8 Q Yes. And legal research on polygraph disclosure
9 .2 hours
10 A Yeah.
11 Q correct? Okay. Um, you also that e-mail
12 to that you got from Mr. Kratz
13 A Right.
14 Q I refer you to Exhibit 344.
15 A Got it. April 12, 2006?
16 Q Right. Now, in thate-mail Mr. Kratz is advising
17 you that he learned that plans were on the way to
18 have Brendansubjected to apolygraph
19 ....examination? ...... ..........
20 A Yes.
21- Q Right? Um, do you know how he had learned that
22 information?
23 A I can draw some inferences, but I don't personally
24 know it, no.
25
1 jail personnel may have alerted him to the fact
2 that somebodys going to be bringing polygraph
3 equipment into the jail?
4 A Quite likely.
5 Q Yeah. Okay. Had you given any thought, perhaps,
6 to seeking an order from the judge that that
7 the people in the Sheboygan County facility
8 not be ordered not to disclose that, uh,
9 information to the prosecution as much as its
10 its it relates to attorney/client work
11 product?
12 ATTORNEY FALLON: Objection. Relevance,
13 speculation. And if there's an attempt at
14 impeachment, the first prong was never attempted
15 in the questioning of Mr. Kratz.
16 So its procedurally deficient. Its
17 its irrelevant. Its immaterial. And it calls
18 for speculation as to what this witness thinks
19 what Mr. Kratz knew. ......
20 THE COURT: I didn't understand that to be
21 the question.
22 ATTORNEY FALLON: Well, then I'm missing
23 something. So maybe the question needs to
24 THE COURT: Why don't
25 ATTORNEY FALLON: be
1 THE COURT: you re-ask
2 ATTORNEY DVORAK: Yeah. I
3 THE COURT: the question.
4 ATTORNEY DVORAK: I think I can do
5 this and resolve his his problem.
6 Q (By Attorney Dvorak) Urn, you didn't tell the
7 prosecution that you were going to have Brendan
8 take a polygraph test; correct?
9 A Correct.
10 Q The information did not come from you; right?
11 A Correct.
12 Q Had you told anybody else?
13 A No.
14 Q So the only person well, all right. Urn, so
15 there's a a a reasonable inference that you
16 were drawing that this information came from the
17 people in the facility?
18 A Right.
19 ATTORNEY FALLON: Still objection.. ' .
20 Irrelevant, immaterial to the issue at hand.
21 THE COURT: I he's answered the
22 question. I'm going to overrule the objection.
23 ATTORNEY DVORAK: Thank you.
24 Q (By Attorney Dvorak) Urn
25 A And - and I did not think about a protective order,

1 no.
2 Q Okay. Did you respond in any way to Mr. Kratz's
3 e-mail? Specifically, I guess, the e-mail covers
4 a couple of issues so let me just deal with the
5 polygraph issue first.
6 A Sure.
7 Q Did you did you contact him in any way to
8 to discuss his concerns about polygraph?
9 A I I don't believe I did. If I did, it would be on
10 the on the voucher.
11 Q Okay. Now the other issue that Mr. Kratz raises
12 in this e-mail is his concern about pretrial
13 publicity that youve chosen to engage in and
14 and cites the rule. Um, did you respond to him
15 about that?
16 A I don't 'think I responded to him, no.
17 Q Okay. Did you read the rules that he had cited?
18 A Yes.
19- Q. You were familiar with the rule before.he cited,
20 it?
21 A Yes.
22 Q Okay. And are you sug you're saying that you
23 didn't have any concerns that you your
24 contacts with the press implicated the the
25 rules relating to attorneys con discussing
201
2 A I thought the way that I was doing it, primarily in
3 terms of process and not as to what specifically we
4 were doing in the case, was legally permissible.
5 Q Also, on this day, you got word that someone from
6 Brendan's family was might have been able to
7 post bail, or talking about posting property as
8 surety; correct?
9 A Yes.
10 Q And did you consider that to be good news?
11 A I thought it was worth a try.
12 Q Okay. You didn't see any problems with it?
13 A Well, I mean, property bonds are often frowned upon,
14 and I think Avery's attempt to do it had already been
15 rejected by Judge Willis. Urn, but I thought we'd at
16 least give it a try for Brendan and see if it it
17 would work out.
18 Q All right. And and there the um, on
19 April 13 you have a phone.conference with
20 Angenette Levy, .2 hours; right?
21 A Right.
22 Q And a phone conference with B. Janda? That's
23 Barb; right?
24 A Correct.
25
1 A I think she just wanted to know if there was anything
2 new in the case. A lot of the calls were that day,
3 sure. And I'm not sure what I talked to her about.
4 I I know positively I didn't tell her about the
5 polygraph test. But other than that I can't really
6 recall.
7 Q All right. Were you aware I mean, you're
8 aware up to this point that that Barb has some
9 concern about your representation and and
10 things that you're saying in the press. Did you
11 get any concerns? Expressions of concern from
12 from Barb at this point about that?
13 A I don't recall. I don't recall getting any, no.
14 Q Okay. Urn, on April 14 take a look at Exhibit
15 350.
16 A I see it. Yeah.
17 Q It's it's relaying information about the fact
18 that the polygraph test is coming up in two

19. couple of- days. And you make mention of a recent .
20 discussion with your mother, um, that people have
21 the impression that what you're trying to do in
22 the case is to get a quick plea, and drop it,
23 and right?
24 A Now that you refresh my recollection, I do recall she
25 said something that her relatives were telling her

1 that that's what I wanted to to do in the case.
2 Something like that.
3 Q And, in fact, that's what the message that you
4 had been trying to send to them by your talking
5 to the press?
6 A No.
7 Q You testified earlier on; right?
8 A That's not the message I was trying to send about a
9 quick plea and drop it.
10 Q Okay. Well, but you you did indicate that you
11 were trying to prepare the family for the fact
12 that that may well be what you're going to end up
13 doing in this case; right?
14 A Let them know about all the options that are are
15 considered. Everything ranging from, you know, a
16 jury trial to a a a plea agreement. Right.
17 Q At at at this point never once did you
18 mention in the press that Brendan said that he is
19 .. not guilty; .right? ...... .........
20 A Correct.
21 Q And that that that he's not guilty and
22 intends to fight the charges?
23 A I did not say that. That's correct.
24 Q Okay. Which is what his position, in fact, was,
25 up to this point; correct?

1 A To look at you could look at it that way, yes.
2 Q Okay. You you indicate that also, by the
3 way, you indicate that the you're not going to
4 disclose the results of the polygraph test to
5 Barb, um, or that Mr. O'Kelly is not going to,
6 but that he will disclose them to you; right?
7 A Right.
8 Q Okay. Um, you've indicated that your primary
9 focus at this point in that letter is on the
10 motion to keep the statements out of evidence
11 and right?
12 A Correct.
13 Q And and what you've done so far is is
14 talked to Brendan twice, listened to the tapes
15 and summarized them, and read a couple of cases?
16 A And reviewed the additional discovery that was at the
17 D.A.'s office and in my possession.
18 Q Okay. Which you did not see to be relevant
19 ... toward any of Brendan's statements? .....
20 A Which what are you referring to on that? The
21 stuff
22 Q No, I'm just I guess I'm just saying back what
23 you had already said. That you didn't really
24 view any of this stuff as being terribly
25 significant to Brendan's case. He didn't bother

1 to copy it? He didnt bother to take it back?
2 He left it in the D.A.'s office?
3 A At that point
4 Q You didn't see any significance to to to
5 much of what they had?
6 A I didn't see it as insignificance, independent, or in
7 addition to what was in narratives narrative forms
8 describing it in some of the discovery.
9 Q Okay. So you had you, in in in the
10 course of analyzing this statement, considered
11 possibility of contamination from outside sources
12 or from interrogators at at this point?
13 A I certainly considered it as I watched it, and., also,
14 when I went over the the transcript again. Urn,
15 from my observations of it I didn't see contamination
16 as being there.
17 Q Urn, and you you you indicate that you also
18 analyzed the statement for purp for Miranda
19 ....purposes? ... -.....
20 A Yes. The whole, you know, (unintelligible) the
21 rights advisals (phonetic) down through the end of
22 it, correct.
23 Q Okay.
24 ATTORNEY DVORAK: Urn, can we play I
25 believe it's chapter three to and I guess I
206
1 don't need the whole thing, but... I'm just
2 going to read it. Um, what exhibit 315.
3 Um
4 THE WITNESS: That the transcript of the
5 interview maybe?
6 Q (By Attorney Dvorak) Yeah. Yeah, 315.
7 A Okay.
8 Q Um, item two. And this is page 13. Sorry.
9 A The first word on there is, up to this thing?
10 Q No.
11 A Oh, thirteen. Excuse me. Okay. I see there's
12 pages. The number's on the bottom. Okay. Go ahead.
13 Q Okay. Yeah. Page thirteen. Yougot it?
14 A Right.
15 Q Chapter three, Miranda ?
16 A Right.
17 Q Okay. Um, and we're talking about the 2-27-06
18 Two Rivers Police Station video, okay?
19 A .Okay. ... ........ .....
20 Q All right. Itsays, uh and
21 ATTORNEY FALLON: Your Honor, I'm going
22 to object again. And if the Court will permit
23 this as a standing continuing objection, fine.
24 But I the State continues to object
25 to questioning regarding his statement, which was

1 never introduced into evidence. And thats what
2 this questioning is about, February 27, 2006.
3 ATTORNEY DVORAK: It's relevant, Judge,
4 to the motion to suppress. The issue of
5 effect or duty of loyalty with respect to the
6 motion to suppress.
7 ATTORNEY FALLON: Absolutely not. We
8 take strong issue with that, and w e re ready to
9 debate that right now.
10 Plus well, I'll wait. Unless you
11 want more argument.
12 THE COURT: No. Urn, I'm going to sustain
13 that objection.
14 ATTORNEY DVORAK: Um okay.
15 Q (By Attorney Dvorak) Let me ask it this way:
16 The were you aware or had you come to the
17 conclusion that the Miranda warnings that were
18 given to Mr. Dassey on February 27, 2006 at the

19. Two Rivers Police-Station was illegally. ...
20 deficient?
21 A I didn't come
22 ATTORNEY FALLON: Objection, again.
23 Same issue. Same question.
24 THE COURT: Well
25 ATTORNEY FALLON: Illegal deficiency is
208
1 a is a question of law for the Court. Well,
2 it's a mixed question of law and fact. But...
3 THE COURT: I'm going to overrule the
4 objection. He can answer that. I'm not interested
5 in hearing any more about this.
6 ATTORNEY DVORAK: Okay.
7 THE COURT: Answer it if you can.
8 THE WITNESS: Sure. The answer is that
9 I don't think I carefully looked at the issue
10 regarding February 27 as a Miranda warning-type
11 issue because the State had indicated that it
12 wasn't going to use that as evidence. And the
13 only thing, then, that was the subject of the
14 suppression motion was the March 1 statement,
15 which I, of course, did go over quite carefully.
16 Q (By Attorney Dvorak) Okay. The let me
17 I let me just ask you this question then: Had
18 you looked at the sufficiency and made any
1-9 determination as to the sufficiency of that ..
20 February 27 Miranda advisal?
21 A I I'd say no.
22 Q Okay. If it was if it were not sufficient, do

23 you think well hold on. That's fine. I'll
24 move on. On April 16, Mr. O'Kelly polygraphs
25 Brendan, urn, and you spend .3 hours on the phone
1 with him. Did Mr. O'Kelly tell you what the
2 results of the polygraph were?
3 A Yes.
4 Q And what did he tell you the results of the
5 polygraph were?
6 A He said the results were inconclusive.
7 Q Okay. And did you at all relay that to Barb at
8 that time?
9 A I doubt it. I don't think I did.
10 Q At at at that time do you recall whether or
11 not Michael O'Kelly had discussed with you or
12 mentioned to you that Brendan was wanting to get
13 a new lawyer?
14 A I don't recall him I don't recall that, no. At
15 some point he did at some point he did warn me
16 there might be problems. I'm not sure where that
17 . fell in the timeline.
18 Q Um, do you have Exhibit 94 in front of you?
19 A Ninety-four? .. -
20 Q Yes.
21 A No, I do not. I think it's in a it must be in
22 volume two. I think the Judge has that one.
23 Q I'll just give him this real quick. It's rather
24 lengthy. Um, and what I'd like you to do is just
25 tell me if you've ever seen anything like that

1 before?
2 ATTORNEY FALLON: Counsel, what Exhibit

3 again?
4 ATTORNEY DVORAK: Ninety-four.
6 THE WITNESS: Right. That was that
7 was a form given to me by Mr. Kelly (sic) after
8 the results of the polygraph exam and his
9 interview with Brendan.
10 Q (By Attorney Dvorak) Urn, and now prior to
11 interviewing Brendan, did you talk with
12 Mr. O'Kelly about inter your you know, what
13 was going to happen or what you were looking for
14 from his meeting with him on that day?
15 A I related to Mr. O'Kelly simply I wanted to send
16 him a copy of the Complaint, and that the issue in
17 the case was or was not Brendan present when all
18 these things had had occurred.
19 ..... -So-it was a very relatively easy-issue
20 to polygraph. It's not a question of admitting
21 to the act'and intent or something like that.
22 So I wanted I said, you know, look at
23 it. See what if he how he polygraphs.
24 Basically on the issue if he was there, did he
25 participate in some way in burning the corpse, or

1 assisting in the homicide or a sexual assault.
2 Q Right. And did you convey to him the the
3 potential for plea agreement down the road?
4 A At that time, no.
5 Q Did you convey to him at all your sense that the
6 statement that he gave was truthful?
7 A I think I was non-committal.
8 Q Okay. Urn, which is which is more than what
9 you had told Brendan then?
10 A I was non-committal to Mr. O'Kelly 'cause I wanted to
11 avoid, first of all, contaminating the - the
12 polygraph process. I don't want him to do a
13 polygraph, giving me predetermined results. I wanted
14 it to be to be accurate.
15 Q Okay. And what was your reaction to the
16 polygraph results?
17 A After
19 THE COURT: Overruled.
20 THE WITNESS: Okay. After O'Kelly told
21 me that it was inconclusive, he made some comment
22 to the effect that he thought that Mr. Dassey was
23 a kid without a conscience or something. Um, so
24 I I guess took from that I really was was
25 non non-determinative.
1 Q Okay. So so, now, Mr. O'Kelly has told you
2 that essentially that Brendan Dassey's a
3 sociopath?
4 ATTORNEY FALLON: Objection to the
5 characterization.
6 THE COURT: Yeah. That that's
7 sustained.
8 ATTORNEY DVORAK: I'm sorry? Oh. Okay.
9 Q (By Attorney Dvorak) Um, all right. Well,
10 knowing that that that's Mr. O'Kelly's view of
11 the case, you then went on to hire him as your
12 investigator; right?
13 A Yes.
14 Q By the way, did you believe that that was the
15 issue in the case?
16 THE COURT: That what was the issue?
17 ATTORNEY DVORAK: I'm sor
18 Q (By Attorney Dvorak) The you you the
19 issue that you had talked about. The the --
20 whether or not Brendan was there, I think you
21 said. Is that right?
22 A Correct. Either right. I ,thought the case was
23 pretty much a case of was based on what Brendan
24 has said, was he there? And did he participate in
25 some way in aiding and abetting, uh, Mr. Avery? Or

1 was he not involved in the offense whatsoever?
2 Q Okay. Well, this the he had he had

3 all always admitted to you that he was by the
4 fire; right?
5 A Right.
6 Q Okay. That was that was not an issue?
7 A Right.
8 Q Okay. So I guess one other thing that I I
9 wanted to touch on at this point about your
10 preparation for the Miranda hearing that you had
11 con that you did you at all consider any
12 custody arguments? ' Custodial statements, that
13 is?
14 I mean, as I recall, you you waived
15 Miranda issues and I'm just wondering whether or
16 not you looked at whether or not any argument
17 could be made that he was in custody at the time
18 some of these statements were made, particularly
19 .....February 27? ...... ..
20 A I didn't deal at allwithFebruary 27 because it
21 wasn't going to be used by the State. Only thing I
22 was concerned about was was March 1.
23 Q Okay.
24 A Um, and so March 1, it was aquestion ofthe overall
25 circumstances of that particular statement.

1 Q So if there was if there were problems with
2 the February 27, youre saying you you you
3 didn't think that that would impact the
4 legality you never considered whether it would
5 impact the legality or the admissibility of the
6 March 1 statement?
7 A Oh, I certainly considered it, but it was two days
8 later, independent Miranda warnings, other events. I
9 thought the intervening events were so strong that
10 any spillover or prejudice was probably nonexistent.
11 THE COURT: Counsel, let's stop here.
12 We'll take an afternoon recess of 15 minutes. I'd
13 like to see counsel in chambers as well.
15 (Reconvened at 3:15 p.m.)
16 Q (By Attorney Dvorak) Mr. Kachinsky, I'd like you
17 to look at a transcript of the motion hearing on
18 February 4. Drawing your attention to page 110.
19. .. Um, the starting, with the second t o the last...
20 paragraph.
21 A I believe it's May 4.
22 Q May, What did I say?
23 A February. I pay attention.
24 Q I meant May 4. I'm sorry. I think it's
25 important to listen to specific wording from

1 there.
2 A That's Judge Fox's statements or mine?
3 Q Um, I believe it's yours.
4 ATTORNEY FALLON: What page number,
5 Counsel?
6 ATTORNEY DVORAK: One-ten was it?
7 THE WITNESS: One-ten.
8 Q (By Attorney Dvorak) I believe it's your
9 argument.
10 A Okay.
11 Q All right. Does that refresh your recollection
12 as to whether or not you made any arguments and
13 considered February 27 statement?
14 A It does.
15 Q Okay. And did you?
16 A Yes, in very much ofa a summary fashion.
17 Q What you say in that argument is that you need to
18 consider the February 27 statement because it's

19 part of a continuum of the police investigation
20 in this matter?
21 A To some extent, yes.
22 Q Yes. Okay. Thank you. Um, the the next day,
23 February April 18, the you this is now

24 your third visit to Mr. Dassey; correct?
25 A Yes.
1 Q Okay. Um, you spend about an.hour and ten
2 minutes with him?
3 A Or well, 1.1 is actually an hour and six but...
4 Q Okay.
5 A Probably an hour of time getting in and out of the
6 jail and so forth, yes,
7 Q Sure. Okay. We don't have any notes of that
8 interview. What did you talk about?
9 A I think I talked to him about the status of where the
10 case was at so far. About any additional facts might
11 need regarding the suppression, uh, issue. About
12 trying to get a bond motion in for a property bond.
13 Things of that nature.
14 Q Okay. Um, and based on your interview with him
15 then, he was still at that time maintaining his
16 innocence; correct?
17 A I don't think we talked about that issue

18 Q Okay.
19 A at that time. But there hadn't been any sudden
20 change of heart or anything.
21 Q All right. The 1 the next day, April 19 by
22 the um, who is Joel Christopher?
23 A Uh, he is a reporter for the Appleton Post Crescent.
24 I think he's the head of the reporting bureau or
25 division. Something like that.

1 Q All right. So on that day you spoke to ten
2 members of the press, and Michael O'Kelly, and
3 got a message from Brendan Dassey; right?
4 A Correct.
5 Q On April 20, are on April 20, you also had a
6 couple of press conferences?
7 A I don't think they'd be called press conferences
8 but...
9 Q Well, okay. You had you talked with the press
10 again. I refer your attention to 327.
11 A I'm lost where you are.
12 Q Oh. No
13 A Exhibit 327?
14 Q Yes.
15 A Okay.
16 Q I'm sorry.
17 A All right. I don't know if that was a oh, yeah, I
18 believe I did. Now that I re-read that, I did say
19 something like that, sure.
20 Q Okay. And and, also, on 328, an interview
21 with Fox-11?
22 A That's Exhibit 328 instead of March 28, but, urn
23 Q Thank you.
24 A Yes. I I don't know if there might have been a
25. short interview, yes.
218
1 Q Okay. Have you reviewed that?
2 A The one Exhibit 328?
3 Q Yeah.
4 A Yes. And I'm not sure. Sometime during this case I
5 took did what I knew that Avery's attorneys were
6 doing. Dean Strang in particular. I started sending
7 copies of my motion to motions and other
8 pleadings, uh, to the media so that they get the
9 story straight, and try to reduce the number of
10 incoming phone calls, and things like'that.
11 I know Dean Strang was doing it at that
12 time. That's why I figured that was a good idea
13 that might that might work.
14 In fact, a article in the Wisconsin
15 Lawyer about four months ago or so suggested some
16 of the things that I actually did in this case.
17 Q Okay. So what you're saying is that you you
18 had picked up on the idea that rather than
19 talking to them you would send motions to the
20 press so that they would have it.
21 .A Right. I would do it at such a time as I knew that
22 they had already gotten the clerk of courts here
23 because I didn't want Judge Fox to hear about
24 something before it got to the got here.
25 But I tried to time it so that they

1 would get it the same morning that it came here.
2 So that way theyd stop asking questions. 'Cause
3 they were monitoring this case on CCAP.
4 Q Okay. Now, you you had a phone conference
5 with Michael O'Kelly on that day, also. And
6 I'm I'm wondering, urn, uh, what -- what you
7 what what your what the direction was for
8 Mr. O'Kelly at this point?
9 A I really don't recall.
10 Q Okay. On on I want to take you up to 4-23.
11 There's a reference here to an e-mail from Kra
12 Mr. Kratz. Do you recall what that was about?
13 A I do not.
14 Q All right. You had on April 24, you had
15 contact with five members of the media; right?
16 A Urn, actually there were three. A. Levy is twice on
17 that day.
18 Q Okay. Urn, there there's also mention in there
19 of an e-mail from Mr. Kratz from Mr. Kratz and
20 to Mark Wiegert. Do you know what that was
21 about?
22 A I'm not sure if this was the time, but there was
23 certainly some discussion at some point of making the
24 March 1 video available for Barb Janda or other Avery
25 family members to view. But I'm not sure if that's

1 what this was about or not.
2 Q And to what end?
3 A I think it was just to show them how convincing it
4 was and, perhaps, affect the advice they were giving
5 Mr. Dassey.
6 Q Yeah. Urn, and the advice you were giving to
7 Mr. Dassey at that point was that his case was
8 pretty much hopeless and that really what he
9 ought to be doing here is focusing on a guilty
10 plea?
11 A I think I really was strong more strongly in that
12 direction once the decision was made on the motion to
13 suppress. That was our basically our only hope,
14 in my opinion, based on the evidence available to
15 have an to acquittal. There was no the
16 confession was suppressed, the State would probably
17 have to dismiss the case for lack of evidence as far
18 as I knew.
19 Q Right. And and you were making that known to
20 the press. The fact that if if the Judge
21 suppresses this evidence, that Dassey may well

22 walk. Mr. Dassey may well walk out the door?
23 A I believe so, yeah.
24 Q Um, on let's see. Four. Some of the I
25 mean, were you aware that Mr. O'Kelly went out
1 to what's St. John's Church? What's the
2 significance of St. John's Church in this case?
3 A Which, uh
4 Q April 24. Um, it's not in your notes. I'm just
5 asking a general question. What is the
6 significance of St. John's Church?
7 A Offhand I can't remember.
8 Q Okay. Does that have anything to do with Teresa
9 Halbach?
10 A I I never followed the end of that case that
11 closely. It might have.
12 Q If if he went out to St. John's Church and
13 took a photograph of St. John's Church, do you
14 have any idea why he might do that?
15 A Um, yes. That would be for the purpose of, perhaps,
16 persuading Mr. Dassey to reconsider his position that
17 he didn't commit the crimes he was charged with. .
18 Q Okay. So at this point, then, Mr. O'Kelly had
19 given you his opinion about Mr. Dassey. You had
20 conveyed your opinion to the Dassey family, as
21 well as to Brendan, that they did not believe
22 his his claim of not being involved in this.
23 Uh, and you at this point were setting out to try
24 and convince him otherwise? Did I summarize
25 A Yeah, I I believe that would be a fairly accurate

1 summary.
2 Q Okay. So maybe St. St. John's Church did have
3 something to do with Teresa Halbach?
4 A I I it might have.
5 Q Okay. Um, on April 25, there's a contact with
6 eight members of the press?
7 A That's correct.
8 Q And that's the only thing you did on that day,
9 other than review Mr. Avery's motion for
10 adjournment; correct?
11 A Well, there was also the e-mails from Mr. Kelly.
12 Q Okay. And and that took two-tenths of an
13 hour? Those two e-mails?
14 A Right.
15 Q Um, you got a an e-mail from from Dean
16 Strang, um, as well as one from Mr. O'Kelly, um,
17 and in in in that e-mail you you thank
18 Mr. Strang for sending information regarding
19 false confessions, or at least stuff that
20 Mr. Buting had sent toyou; right?
21 A I did.
22 Q Yeah. Was wasthere anything new? Was there
23 any new information that you didn't already know
24 about confessions in there that you recall?
25 A I read it, and I tried to correlate it to the known

1 facts related to Mr. Dassey. I mean, I thought it
2 .was interesting. I didn't think it was persuasive.
3 But I thought that if Dassey rejected my
4 advice and decide to go to trial it certainly
5 would be useful material.
6 Q Okay. But there's no doubt that the focus of
7 your investigation and your proceeding at this
8 point is is to convince Mr. Dassey of the
9 futility of doing that.
10 A Well, I'd also previously, you know, reviewed
11 partic particular emphasis on the timeline, and at
12 least one witness that somebody had asked me to talk
13 to. I believe it was a an employer that had
14 called the Dassey household.
15 So I also at least looked at the the
16 alibi possibility as as a -- as a defense.
17 But- I concluded that it wasn't going to work very
18 well. That they were not very convincing
19 witnesses.
20 So, yeah, the focus was trying to
21 convince Mr. Dassey that this is what the best
22 thing for him to do was.
23 Q So so you had interviewed a witness then?
24 A At least one. I think it
25 Q Yeah.
1 A was Mr. Connerly (phonetic).
2 Q Okay.
3 A I may have misspelled his name on the slip.
4 Q All right. Urn, on April 27 you don't have
5 this here, but there was an e-mail that Mike
6 O'Kelly sent you? It's Exhibit 64.
7 A That's a volume two item again?
8 Q Yes.
9 A Okay. I see it. April 27. Right.
10 Q Okay. Had you recall receiving that and
11 reading that?
12 A Yes, I do.
13 Q Okay. And this is a report from Michael O'Kelly
14 about the work that, he's been doing on behalf of
15 Brendan; correct?
16 A Correct.
17 Q And what he's what he's saying in here is that
18 he's in the process of of he's describing,
19 first of all, going out to the property and
20 and rather comically expressing the reaction of
21 the Avery family as running around. It was like
22 a field mice watching for a cat, is the way he
23 describes it; right? And that's the second
24 paragraph first full paragraph on the second
25 page?
225
!
1 A Right, That's his description.
2 Q Okay. Um, he then two paragraphs down from
3 that I have Barb collecting information regarding
4 Brendan's medical, educational, family history so
5 we can begin assimilating the mitigation
6 information for sentencing and penal placement?
7 A Right.
8 Q Okay. The focus at this point was on sentencing.
9 That's what Mr. O'Kelly's doing; right?
10 A Well, that was part of what he was supposed to do,
11 yes.
12 Q Okay. Well, and the other thing he was doing was
13 developing trying to develop information that
14 the State could use; right?
15 A I
16 Q Against Mr. Avery? Correct?
17 A Correct.
18 Q Yeah. 'Cause he talks about developing inside
19 information that in the immediate days after
20 Terese (sic) was murdered, that Earl moved both
21 the Suzuki and her van to the boneyard.
22 And he's concerned that evidence is
23 going to be degraded and/or disposed of in the
24 crusher by the Averys.
25 Um, he says, it's clear in the discovery

1 detectives are quietly asking about the Suzuki
2 and trying not to sound an alarm for fear of
3 losing the Suzuki and its possible evidentiary
4 contents.
5 Now, this is the knife that we're
6 talking about; right?
7 A Right.
8 Q Is that what he was thinking?
9 A I believe so.
10 Q Yeah.
11 A I don't know what he was thinking but
12 Q Yeah.
13 A what he wrote.
14 Q Okay. That's what your understanding was. So
15 he's out looking for for evidence? Um
16 A Right.
17 Q Okay. Um
18 A Giving meoptions.
19 Q This possible linking evidence and Brendan's
20 truthful testimony may be the break-through that
21 will put their case more firmly on all fours.
22 It says, uh, is there a way that we can
23 secure the Suzuki and protect them for the
24 prosecution in Avery's case? And can we obtain
25 an an SDT to secure both of those items?

1 Right?
2 A That's what he wrote.
3 Q Okay. Hes looking for you to to help him,

4 .um, get a a some kind of search warrant or
5 something to to seize or an order that'll

6 allow him to seize that stuff so they can inspect
7 it?
8 A That was that's what he was asking for, yes.
9 Q Yeah. Okay. And then there's a the next
10 paragraph, something I I grammatically I
11 have a problem with, but he says, I am not
12 concerned with finding connecting evidence
13 placing Brendan inside the crime scene as Brendan
14 will be the State's primary witness.
15 So, in other words, he's not concerned
16 that if he's going to he's going to come
17 across evidence that against Brendan that's
18 going to nail Brendan, he's not worried about
19 that?
20 A He didn't
21 Q Right?
22 A He didn't think that it wasavailableor something.
23 You'd have to ask him what he was thinking.
24 Q Sure. Fair enough. Thiswill onlyserve to
25 bolster the prosecution. It will actually

1 benefit the State if there's evidence attributed
2 to Brendan, it will corroborate his testimony and
3 color him truthful; right?
4 A That's what hewrote.
5 Q Okay. Well, did you did you tell him to stop
6 doing that?
7 A No, I didn't tell him to stop. He
8 Q You had
9 A was
10 Q You had
11 A providing options.
12 THE COURT: Let him finish.
13 ATTORNEY DVORAK: Sorry.
14 THE WITNESS: It was his job to provide
15 the options and I would make the decision whether
16 we do it or not. These ones, in particular, I
17 don't think we ever did.
18 Q (By Attorney Dvorak) Okay. You had his blessing
19 to go in this direction?
20 A Right. See what he could come up with.
21 Q Right. And
22 A I was trying to control his number of hours. That
23 proved to be a real problem but...
24 Q Um, and and up until this point Brendan's
25 position to you is that he was not guilty?

1 A Yes.
2 Q Okay. And then he goes on in the next paragraph
3 about salvaging Brendan's future and, um, and
4 and gathering mitigating information; right?
5 A What he wrote.
6 Q Okay. Um, he has a curious statement here. If
7 the detectives were trained in linguistic
8 analysis, they would have arrested Brendan close
9 to when they did Steve.
10 Do you did you have a discussion with
11 him about what he was talking about?
12 A No.
13 Q Okay.
14 A I didn't discuss it with him, no.
IS Q Okay. And, um, he was also going to try and
16 collect a wooden spoon that Barb had apparently
17 used to beat Brendan with when he was a little
18 kid?
19 A That's what he said.
20 Q Okay. He also says, Ilike how you practice law
21 and; defend your client. I enjoy working with an
22 ethical defense attorney who is not underhanded
23 and plays hide the ball. You guys were a good
24 team.
25 A I.guess I had I had his respect. I certainly had,
230
1 also, concerns that he was, at times, out of hand,
2 especially on the expenditure of of hours. It was
3 going way over what was authorized, and I it was
4 clear to him that if it wasn't authorized he wasn't
5 going to get paid.
6 Q Okay. Fair enough, Um, but his actions were
7 authorized by you? One of the things that he
8 billed for?
9 A I gave him a general direction to investigate. Come
10 up with whatever he could come up with. What was
11 going on with the Avery family. If there was
12 anything that might support or detract from potential
13 alibi. Those were the main directions I wanted him
14 to look at.
15 Q All right. On May 1, you have a and this is
16 a a hand-written note that you have. And I'll
17 just ask you, there's a a note on a on one
18 of your pieces of paper that says, psych on
19 Branden (sic), with a question mark. Do you
20 recall that? Look at 361. I'll just let's
21 just do it that way. Maybe that will refresh
22 your recollection.
23 A Okay.
24 Q Um, do you know what you were thinking about when
25 you wrote that?

1 A I believe what this is, is a number is a notes
2 that I took during a conversation with O'Kelly
3 because it makes reference to when he would be
4 unavailable.
5 Q Okay. Now
6 A He may have may have talked about whether or not
7 we should have a psychiatric or psychological
8 evaluation done.
9 Q And that would be for the purposes of the
10 sentencing I take it?
11 A I believe I'm not sure what the purposes were
12 going to be. I I guess. I don't remember.
13 Q Okay. Urn, but it wasn't didn't have anything
14 to do with themotion to suppress?
15 A I don't believe so, no.
16 Q That's like three days away?

17 A Right.
18 Q Yeah. Okay. Urn, and on May 3, urn or on May

19 2, you you file a reply to the D.A.'s memo?
20 You have a phone conference with the judge and,
21 uh, Mr. Kratz followed up by an e-mail? And then
22 you talked to the press, urn, on May 3; is that
23 right?
24 A There wasa shortphone conference with Angenette
25 Levy and with Laurie Ricciardi. I'm not sure what it
1 was .
2 Q Okay. I I was
3 A I didn' t call them.
4 Q I was - I was: summarizing May
5 A Sure.
6 Q 2. But yeah. Okay. And then
7 A The 2nd Yes.
8 Q Yeah.
10 ATTORNEY DVORAK: Oh. Sorry.
11 THE WITNESS: Yes.
12 Q (By Attorney Dvorak) Okay. And on on May 3,
13 again, there's a a an e-mail to O'Kelly.
14 You review a Strang motion. Two phone
15 conferences with members of the press. And you
16 reorganize your file for the hearing.
17 The phone conference with Ricciardi and
18 reorganizing your file, uh, for the hearing is
19 accounts for half an hour; correct?
20 A Right.
21 Q And so your billing recordsto this day
22 accurately summarize the preparation that you did
23 for the hearing on May 4?
24 A Yes.
25 Q By the way, youstipulatedto the Miranda

1 warnings issue. Did you ever talk to Brendan
2 about that?
3 A I don't recall if I did or not.
4 Q Okay. Urn, in in did you, as part of the
5 Miranda, or as part of the the motion to
6 suppress, did you consider any of the police
7 tacks uh, tactics that may have negated the
8 Miranda warnings?
9 A Not as they related to Miranda. I did as they
10 related to voluntariness as the memory items I filed
11 indicate.
12 Q Okay. And how much time did you you called
13 Barb at the hearing; right?
14 A I did.
15 Q And when did you talk to Barb about that hearing?
16" A Several times before it was conducted. Not for very
17 long periods of time. I know I talked to her I
18 was undecided whether to call her.
19 I was kind of reluctant to call her,
20 but, uh, finally decided, I think, a day or two
21 before the hearing to do it because she would
22 have the best knowledge from being Brendan's
23 mother for all of his natural life as to whether
24 or not he was suggestible.
25 I thought, though, the primary evidence

1 as to the suppression was the the tape,
2 itself, for three-and-a-half hours, which the
3 Judge had already seen.
4 Q Right. Right. And when you asked her the
5 question about suggestibility she seemed to
6 answer it was kind of nonresponsive. Do you
7 remember that?
8 A I do.
9 Q Yeah. Do you do you think she'even knew what
10 the word "suggestibility" meant?
11 A I I didn't know what the the problem was 'cause
12 I talk used the word "suggestible" and things like
13 that in previous conversations with her and she
14 seemed to know what it was so I just quit while I was
15 ahead.
16 Q Yeah. And there's I'm just skimming back, uh,
17 just even the last maybe the last couple of
18 pages on this, and there's no indication, at
19 least from April 26 to the present, that you had
20 talked to Barb?
21 A Probably not. April 26, that's
22 Q Through the date of the hearing.
23 A That sounds about right.
24 Q Yeah. Okay. And I don't know how I'm not
25 going to go back and figure it out. But at least
235
1 from that period of time you never talked to
2 Barb?
3 A I don't believe so.
4 Q Okay. Um I want to on on May 5, the day
5 after the hearing, um, I want to refer you to
6 Exhibit 338.
7 A Okay.
8 Q This is an e-mail from you to Mr. Wiegert; right?
9 A Uh, correct.
10 Q And Mr. Kratz is copied on it?
11 A I believe so.
12 Q And I I cant readwhat the other one is.
13 Um oh, that's Mike O'Kelly. That's right.
14 Don't lie to me.
15 A Right.
16 Q Don't lie to me O'Kelly. He says, our
17 investigator what what you you're
18 telling Mr. Wiegert in this Mr. and and
19 just for the record, Mark Wiegert is an
20 investigator in this case; right?
21 A Correct.
22 Q Yeah. Um, so you're sending an e-mail to him
23 informing him that Mike O'Kelly has developed
24 some information in the course of talking to
25 Brendan's relatives, but not Brendan, uh, that

1 might shed some light on the whereabouts of the
2 Suzuki and Barb's van, which may contain some
3 evidence useful in the case. You are authorized
4 to talk to him directly. And you give him
5 Mr. O Kelly's phone number; right?
6 A Right.
7 Q Or by e-mail at the address above, and the cc.
8 Uh, this appears to be insufficient, in and of
9 itself, to establish probable cause for another'
10 search of the Avery salvage yard. However, it
11 may go a long way toward getting you there.
12 Urn, had you so so you
13 obviously, you had a a discussion with O'Kelly
14 about turning this stuff over to the State?
15 A The information, yes.
16 Q Okay. Had you ever talked to Brendan that you
17 about doing that?
18 A No.
19 Q Okay. You never got Brendan's okay to to have

20 your investigator talk to the police and and
21 give the police information that your
22 investigator had gathered in the course of
23 representing Brendan?
25 Q Would you and it goes on. Would you we

1 would prefer to stay unnamed in any affidavit for
2 search warrant if at all possible.
3 Urn, now, I'm assuming that that's'
4 because you wouldn't want the Avery family or
5 Brendan to know that that's what's going on?
6 A The Avery family, certainly.
7 Q Okay. Uh, what about Brendan? If Brendan found
8 out about that, do you think it might cause a
9 a problem with your relationship with him?
10 A I don't think I even I don't think I considered
11 that at that time.
12 Q You didn't even think about it. Okay. Um, Mike
13 has not made any direct observations of the
14 subject vehicle but it may lead you to
15 re-question some witnesses prior to another
16 search warrant application.
17 And then you request some information
18 from the D.A.'s office so that he can look at the
19 aerial photos; right?
20 A I requested they made made available to O'Kelly to
21 view. Those were some of the materials that I did
22 not make copies of.
23 Q Okay. So so - and you didn't have you
24 didn't have copies of those already; right?
25 A Correct.
238
1 Q That's some of the material that you had
2 previously reviewed and decided that it really
3 didn't matter much to as far as you could tell
4 to Brendan's case?
5 A At least not immediately, no.
6 Q Yeah. Okay. Urn, did did you ever turn this
7 memo or this copy of this e-mail over to
8 Mr. Fremgen?
9 A I don't know if I did or not.
10 Q Okay.
11 A I'm not sure I printed it.
12 Q Or Mr. Edelstein?
13 A Right. Well, Edelstein was under contract from
14 Fremgen.
15 Q Okay. On May 7, Michael O'Kelly and I'm
16 referring to Exhibit 65.
17 A Okay.
18 Q This is an e-mail from Len Kachinsky to you;
19 correct?
20 A Uh, from it's from Mr. O'Kelly to
21 Q I'm
22 A me.
23 Q Yeah. I'm sorry. That's right. Urn, and
24 Mr. O'Kelly copies Mr. Kratz, Tom Fassbender
25 Special Agent Fassbender John Dedering, who is
239
I j i
1 with the Calumet Sheriff's Department. Right?
2 A Correct.
3 Q And heis notifying you andthe prosecution that
4 he's going to be meeting with Brendan on Friday,
5 May 12, when Brendan returns from the hearing at
6 the Manitowoc County Courthouse, and telling you
7 that he would like to start meeting with Brendan
8 upon his arrival? In other words, as soon as
9 Brendan gets back; right?
10 A Yes.
11 Q What'sthe significance ofMay 12?
12 A I believe May 12 was decision day on the motion to
13 suppress. Or at least it was supposed to be.
14 Q Okay. So this is the - this is a a key day,
15 as far as you're concerned, in terms of this
16 where this case is headed?
17 A Whenever I don't whatever day that decision was
18 made, yes.
19 Q Yeah. That's that's a key day. All right.
20 Urn, and he says in bold letters that he's cc'ing
21 the prosecutor, and Special Agent Fassbender, and
22 Dedering, and makes a request that he wants the
23 following information. And he lists a number
24 11 items there; right?
25 A Right.
240
1 Q Okay. Urn, did you what what do you what
2 do you what can you tell me about what's going
3 on here?
4 A I guess as I got this, I started getting concerned
5 that he's doing the prosecutors' work for him. Urn,
6 and just demands, I think, were
7 Q Well, you had
8 A excessive.
9 Q Okay. You had talked to him about setting up a
10 meeting once the decision
11 A Right.
12 Q once the decision had come down. You had
13 you had talked to Mike O'Kelly about talking to
14 Brendan to get him to confess again; correct?
15 A Right. Well, at least to see if he had changed his
16 position. I don't know if I'd call it confess again,
17 but, yes.
18 Q Well, changing his positionmeans going from
19 saying, I wasn't involved, to I was involved?
20 A Correct.
21 Q Okay. And saying, I'minvolved is a a
22 confession?
23 A Essentially.
24 Q Okay. Did you did you talk to Mike O'Kelly,
25 by the way, about the concerns that you had?
241
1 That you just expressed about?
2 A I don't I don't think I ever talked to him about
3 his attitude, but I told him a number of his demands
4 in there were were excessive, and un
5 unnecessary, and he was running up time and costs
6 without any benefit to
7 Q Right.
8 A to
9 Q Right.
10 A the case. And he wasn't going to I was you
11 know, there were limits to what the State Public
12 Defender was going to pay, and I wasn't going to keep
13 dumping requests on them without tangible usable
14 results.
15 Q Sure. Yeah. So you wanted him to to lean
16 down a little bit about this?
17 A Right.
18 Q (Unintelligible.)
19 A (Unintelligible.)
21 THE COURT: Let's just rewind this. Start
22 over.
23 Q Sure. The your your concern that you're
24 expressing is the concern with the number of
25 stuff that he wants, and your concern that the

1 Public Defender's Office isn't going to pay for
2 it; right?
3 A Um, that, and I just thought that this was a well,
4 it was going to take so much time to look at and read
5 this stuff, and it just really was not necessary for
6 him in terms ofdoing the job he needed to do for us.
7 Q Right.
8 A So it was running up, you know, in that sense,
9 excessive hours.
10 Q Okay. Your concern was not that he was
11 communicating with the prosecution?
12 A Correct.
13 Q Your concern was notthat hewas gathering
14 information to lay on Brendan to get him to move
15 off or or to to confess; right?
16 A That was the objective. We weren't the provision
17 of information beyond the one instance you cited, uh,
18 wasn't going to be made until another interview by
19 Kelly with with Brendan.
20 Q And you selected May 12 because you knew that if
21 the decision went against Brendan, that and
22 Brendan learned about that, and you told him,
23 well, we've lost the motion, this confession's

24 coming in, you knew that this would be a low
25 point for Brendan. This would be a a body

1 blow for Brendan?
2 A This would be a point he was most likely to think
3 about what really .happened and and tell me.
4 Q Yeah. You you you figured he would be most
5 vulnerable at this point?
6 A From talking to me, yes.
7 Q Okay. So that was a a strategic decision, I
8 guess you could say, on your part?
9 A The time of theinterview shortly after the motion
10 hearing.
11 Q Yeah.
12 A Yes.
13 Q On May 8 Exhibit 339.
14 A Okay.
15 Q You have it's a it's a e-mail from
16 Mr. O'Kelly to Dedering and Special Agent
17 ' Fassbender; correct?
18 A Right.
19 Q He didn't and and and what he's telling
20 Fassbender and Dedering that he thinks their
21 investigation would be well-served by consulting
22 a student of his a former student of his
23 named Doug Weber, the Osceola County Sheriff in
24 Iowa.
25 Did you have any did and and he

1 didn't cc you on this? Didn't copy you on this?
2 Did you know he was going to do that?
3 A No.
4 Q Do you know what that was about?
5 A Mr. O'Kelly had a belief that you could tell whether
6 somebody was lying or telling the truth based upon
7 linguistic analysis. And so that's the best I can
8 think about it.
9 Q Okay. And did you authorize him to talk to
10 the or communicate with the State, agents of
11 the State, whether it be the D.A. or any of the
12 officers on the case, without your knowing about
13 it?
14 A No, I did not authorize that.
15 Q Okay. When did you first learn about this
16 e-mail?
17 A Uh, two minutes ago.
18 Q Okay. Urn, you had a conversation, however, with
19 Mr. O'Kelly about linguistic analysis?
20 A I think certainly mentioned it off and on.
21 Q Okay. What's your opinion of statement analysis?
23 ATTORNEY DVORAK: I'll withdraw
24 THE COURT: Sustained.
25 ATTORNEY DVORAK: the question. I'm

1 sorry.
2 Q (By Attorney Dvorak) Urn, did you ask him to
3 conduct a a linguistic analysis of Mr. of

4 Brendan?
5 A No.
6 Q Then on May 9 there's a a couple more e-mails.
7 I want you to refer to 66.
8 A Okay.
9 Q And I want you to start this is a a chain
10 which starts on the back end of it. It's I
11 think it starts on the second page is what I want
12 to re direct your attention to.
13 It says, Thanks, Mike. Original
14 message. And you go down. And before there's a
15 list of things you're talking about making
16 arrangements for him to do a videotaped in
17 interview on May 12; right?
18 A It was certainly an interview. And he mentioned he
19 was going to videotape it.
20 Q Right. He's he talks. And
21 A Right.
22 Q In fact, you mention it in your e-mail. He's
23 going to bring recording devices. A camcorder.
24 Dictaphone. Portable audio recorder.
25 Accessories. Tripod. Blank recording tapes.

1 Toshiba laptrop -top. A Canon IP-90 portable
2 printer and paper. He wants to bring all of this
3 stuff in; right?
4 A Right.
5 Q Okay. This is going to be a production on May
6 12?
7 A That's that1s what he wanted to try to do
8 depending on what the conversation was.
9 Q Yeah. Okay. And, urn, your you find out
10 your you know about this, and you say earlier,
11 up farther, you're going to youre going to
12 make that communication.
13 And, urn, on your part of the e-mail,
14 you're going to communicate with him. Try to get
15 the okay. Uh, and you suggest that he call
16 the the D.A.'s office, speak to Shirley to get
17 access to the items that he's what is it?
18 This 11 items that he's asked for; right? Rather
19 than your doing it?
20 A I believe so.
21 Q And then you say, urn, in the next paragraph,
22 unless you think it would be a bad idea, I was
23 planning on going to Sheboygan on Wednesday
24 afternoon for a general pep talk, and to talk to
25 him about giving a complete statement to you on

1 Friday. Urn, right?
2 A Correct.
3 Q Okay. You wanted his opinion about that?
4 Whether that was a good idea for you to do?
5 A Right.
6 Q Okay. The next day you hear back from
7 Mr. O'Kelly, and he says andit's this i s .
8 the third paragraph from the bottom. "I think
9 that your visit," you see that?
10 A Right.
11 Q I think that your visit will becounterproductive
12 to our goals for Brendan. It could have Brendan
13 digging his heels in further. He could become
14 more entrenched' in his illogical position and
15 further distort the facts.
16 He has been relying on a story that his
17 family has told him to say about October 31.
18 Thus, it will take me longer to undo, if I can
19 even, without your visit.
20 So h e s telling you not to go?
21 A That was his recommendation, yes.
22 Q Okay. And and you reply back to him; is that
23 right?
24 A Correct.
25 Q And you say, Mike, I will cancel my planned visit
i
1 for today. I have plenty of other work to do.
2 Right?
3 A Correct.
4 Q He goes on to say that Brendan needs and this
5 is the last paragraph. Brendan needs to be
6 alone. When he sees me this Friday, I will be a
'7 source of relief. He and I can begin to bond.
8 He needs to trust me and the direction
9 that I steer him into.
10 Brendan needs to provide an explanation
11 that coincides with the facts, slash, evidence.
12 Right?
13 A Right.
14 Q You knew that's what that's where h e 's headed?
15 Strategies that that he was going to try and
16 use; right?
17 A Yes.
18 Q So not only did he not want you to go down there
19 and let him know'that what was going to happen
20 on Friday, May 12, urn, he also didn't want you
21 there on May 12?
23 Q Okay. So on May 12 a judge issues a decision
24 denying your motion; right?
25 A I believe that was the day.

1 Q Yeah. Um, and as part of prior yeah.
2 And and up until this point, up until May 12,
3 Brendan is still maintaining his innocence;
4 correct?
5 A Yeah. He hadn't made any statements contrary to what
6 he made in the previous one or two. The first ones
7 when he said he didn't do it, wanted the polygraph.
8 Q Yeah. Okay. Um, and you hadn't told him about
9 the results of the polygraph, had you?
10 A At some point I did. I'm not sure when it was. I
11 told him it was inconclusive. I think it was I
12 probably told him that the one time the first
13 time I met him after it was, uh (unintelligible)
14 Q Would it surprise I'm sorry. Would it
15 surprise you to learn that, um, the one of the
16 first things that Mr. O'Kelly did when he was
17 with Brendan was to show him a computer screen
18 and explain to him that those were the polygraph
19 results, and that it was 90-some percent
20 conclusive that
21 ATTORNEY FALLON: I'm going to object to
22 this detail on the polygraph discussion.
23 THE COURT: The grounds?
24 ATTORNEY FALLON: Court's previous

25 ruling. There's enough evidence in the record
1 for state of mind-type of questioning.
2 But for this particular detail, I think
3 it's beyond the scope of what would be permitted
4 for that.
5 So I would object based on the Court's
6 previous ruling of inadmissibility.
7 ATTORNEY DVORAK: I have a better idea,
8 Judge. Let me try to rephrase the question. If
9 his objection is to detail, because I
10 Q (By Attorney Dvorak) Urn, Mr. Mr. O'Kelly I
11 guess what I'm getting at is, is the the tape
12 from May 12 would suggest that Brendan did not
13 know the results of that polygraph test. Would
14 that surprise you?
15 A It would, 'cause I know I told him at least once.
16 But maybe he didn't I I don't know why he
17 wouldn't remember something like that.
18 Q All right. The let me see.. You give a press
19 conference or you talk to the press after
20 you talk to Fox 11 after that hearing on May 12.
21 And I refer you to Exhibit 329.
22 A Okay.
23 Q And you you express you tell the press that
24 you're not terribly surprised at the ruling as
25 much as you're disappointed in it. So we.'11 just
251
1 have to take it from there?
2 A Right.
3 Q You you weren't surprised?
4 A No.
5 Q You'd expected to lose?
6 A Yes.
7 Q Um, and at this point there is a an issue of
8 bail that's addressed by the State where things
9 are to be sealed; right?
10 A There's mention of that in there.
11 Q Yeah. Okay. And the State is asking that it be
12 sealed, presumably, because they don't want the
13 information to become public; right?
14 A Right.
15 Q And your comment about that is the second
16 page. Or is it the third page? I'm sorry, The
17 third page, second to the last paragraph.
18 It's it you got it?
19 A Yeah.
20 Q It's not it's not what I would characterize as
21 smoking gun evidence regarding Dassey. Certainly
22 it does, to some extent, corroborate his
23 confession about all I can really say about it.
24 Um, clearly this evidence was not in the
25 public domain yet; right?

1 A Correct.
2 Q Okay. And, clearly, it is prejudicial to
3 Brendan? At least to some extent? Whatever it
4 is?
5 A As I recall, it dealt with some crime lab results.
6 Q Okay. You say
7 A Not directly
8 THE COURT: Well, here.
9 Q that it does to some extent corroborate his
10 confession. That's what you say in the press.
11 Whether it does or not, I don't care. Is that
12 what you -- that's what you said, though;
13 correct?
14 A Yes.
15 Q Okay. Urn, meanwhile, um, Mr. O'Kelly is waiting
16 for Brendan at- the Sheboygan facility; right?
17 A He was supposed to.
18 Q Had you pretty much given Mr. O'Kelly carte
19 blanche to do whatever he saw fit at this
20 interview? I mean, you trusted him to to
21 to do what he was going to do; right?
22 A I assumed he would act within, you know, ethical
23 moral behavior.
24 Q Okay. Do you assume that he would did you
25 have a discussion with him about what he was

1 going to do?
2 A Only in very general terms that he was going to go
3 over the evidence that existed in the case with
4 Brendan, compare that with his statement, and try to
5 convince Brendan, logically, that if confession was
6 valid and that the State was probably going to get a
7 conviction if there was a trial.
8 Q Okay. Now, but at this point were you aware of
9 any physical evidence, any DNA, any fingerprints,
10 or anything of that nature, that put Brendan in
11 Steven Avery's house that night?
12 A Not that I was aware of, no.
13 Q Okay. In fact, there was none; right?
14 A I don't know whatdeveloped after I was offthe case.
15 Q Right. But certainly to this point there was no
16 physical evidence of of certainly no
17 fingerprints, or DNA, or anything of that nature,
18 that put Brendan inside Steven Avery's house?
19 A That I was aware of, no.
20 Q Right.
21 A Yes.
22 Q Okay. Do you know if Mike O'Kelly was aware of
23 any?
25 Q Okay. Did but you did you knew that
254
1 Michael O'Kelly was going to bring the tape
2 because of the e-mail. Did you ever take a look
3 at that tape?
4 A No.
5 Q You never did?
6 A No.
7 Q Okay. What I'd like to do is
8 ATTORNEY DVORAK: Can I just have one
9 second, Judge? Judge, at this point what I would
10 like to do is play some of the clips from the
11 that May 12 interview for Mr. Kachinsky to see
12 if what he knew, and if he knew it, whether he
13 would have approved of what was going on with
14 Mr. O'Kelly.
15 ATTORNEY FALLON: The State would object
16 to that proffer at this particular time based on
17 the status of the record.
18 Mr. Kachinsky has indicated he was
19 unaware, had never reviewed the tape, um, and
20 there's been no authentication or identification
21 of that matter, uh, what we're going to see is,
22 in fact, what occurred or allegedly transpired on
23 May 12.
24 THE COURT: I take it that's a foundation
25 obj ection?
1 ATTORNEY FALLON: Yes. And, most
2 Importantly, I would still object as it relates
3 to relevance and materiality un under the
4 underlying proceeding.
5 THE COURT: Court is going to sustain the
6 objection.
7 ATTORNEY DVORAK: Judge, uh go ahead.
8 ATTORNEY DRIZIN: May I respond, Your
9 Honor?
10 THE COURT: No.
11 ATTORNEY DRIZIN: Can I make can we
12 make an offer of proof with regard to this, Your
13 Honor?
15 ATTORNEY DVORAK: Urn, if the I think
16 the the evidence would show that Mr. O'Kelly
17 had laid out a a rather elaborate display of
18 material that he had gathered from his
19 investigation, and those materials included
20 photographs of Teresa Halbach, of the church,
21 ribbons from her from the church, a photograph
22 of a sign from the Avery property that said "dead
23 end." Urn, and
24 Yes. Yes. Okay. That is I I'm just
25 describing what the setting was. And and it

1 also had a laptop computer on it. The laptop
2 is Mr. O'Kelly goes in and starts with the
3 laptop and points to the laptop and asks
4 Mr. Dassey asks Brendan, what do does he
5 know what that is. And Brendan says, no.
6 And he then proceeds to say that it's
7 the polygraph results, and proceeds to to tell
8 Brendan that the results of the polygraph test
9 essentially are that he has that he lied and
10 that he failed the polygraph test. That there
11 was 98 percent showing of deception.
12 And a Mr. O'Kelly asks Brendan
13 whether or not he knows what that means. And
14 Brendan turns to him and says, does that mean I
15 passed? And Mr. 0 Kelly says, no, it means you
16 failed.
17 Urn, that's how this interview starts.
18 The the clip the second clip is going to
19 show that Mr. O'Kelly then engaged in several
20 coercive tactics, uh, techniques to get Brendan
21 to confess.
22 Um, and and the the third clip,
23 he he tells Mr. he tells Brendan that the
24 only two things that he doesn't know about this
25 case is whether or not Brendan is sorry for what
L: .
1 he did and whether he would do it again.
2 And Brendan tells him that he doesn't
3 know if he's sorry because he didn't do anything.
4 Michael O'Kelly then tells him that his
5 situation is essentially helpless. He tells
6 Brendan that Michael O'Kelly that I cannot
7 help you, and that you're going to spend the rest
8 of your life in prison. Essentially telling him
9 that he has no hope. He has no other option.
10 In clip four you would see that
11 Michael O'Kelly saying you understand it now.
12 Brendan knows that he has no one in the justice
13 system to help him. That that he's he is
14 totally alone. Totally abandoned.
15 That even his lawyer at this point
16 doesn't believe him, and that his it really
17 he's all alone in this and he's by himself.
18 He then gets Brendan to retract his last
19 statement on this survey form. The previous one
20 that I think we had introduced into evidence.
21 And and that previous survey form in in
22 which Mr. Brendan h a d had claimed
23 innocence, and telling Mr. Dassey that it was not
24 an option but to retract it.
25 And and did that again in clip seven
258
1 and eight.
2 Um, I would like to know from
3 Mr. Kachinsky whether or not, had he been there,
4 he would have authorized any or all of those
5 techniques. Any or all of those statements to
6 Mr. to Brendan, to his client. Um, and what
7 he thought about that activity. Whether he would
8 have stopped the interrogation. Whether he would
9 have done anything to mitigate it or minimize the
10 impact of of these clearly coercive .
11 techniques. Or whether or not he would have let
12 Mr. O'Kelly continue.
13 Um did you and and I would
14 have x would like to know from Mr. Kachinsky
15 whether or not he knew that was going to the
16 interview was going to proceed that way. Whether
17 or not he had previously authorized any of these
18 tactics, um, any of this procedure before
19 Mr. O'Kelly engaged those things. Um
20 THE COURT: Does that complete your offer
21 of proof?
22 ATTORNEY DVORAK: No.
23 ATTORNEY DRIZIN: Judge, I don't want to
24 interrupt Counsel, but I just need to be clear.
25 Did you sustain the objection on relevance

1 grounds or did you sustain the objection on
2 foundation grounds?
3 THE COURT: Actually, at this point, it is
4 on foundation grounds. I'll reserve rule ruling
5 on relevance grounds. Okay.
6 ATTORNEY DVORAK: Well, then, Judge,
7 could we offer it conditionally subject to
8 proving it up? Uh, proving
9 THE COURT: No.
10 ATTORNEY DVORAK: Okay. Then we reserve
11 the right to call Mr. Kachinsky again.
12 THE COURT: How much longer, Counsel, are
13 we going to be spending with Mr. Kachinsky?
14 ATTORNEY DVORAK: Um, I'm I think I'm
15 actually pretty close to being done, Judge,
16 'cause I don't plan on going past May 13.
17 THE COURT: You're on May 12, so
18 ATTORNEY DVORAK: Yeah, so not much
19 not much left.
20 THE COURT: Okay. Go.'
21 ATTORNEY DVORAK: Um, and well, I
22 and I do have a few follow-up questions. All
23 right.
2'4 Q (By Attorney Dvorak) Um all right. You
25 then you get a a phone call from

1 Mr. O'Kelly later that evening on the 12th;
2 right?
3 A Yes.
4 Q Okay. Urn, and what do you -- what's your
5 recollection of that phone call?
6 A Approximately nine p.m. he calls me. It's a Friday
7 night. He tells me about the interview. And that as
8 a result of his interview, that Brendan had indicated
9 he was involved in the death and sexual assault of
10 Teresa Halbach. And that Brendan wanted to give
11 now give a statement to to law enforcement.
12 Q Okay. Did you get the details of of what
13 Brendan had said from Mr. O'Kelly that night?
14 A No.
15 Q Ultimately, an interview was set up for the
16 following day; correct?
17 A Saturday, the 13th, yes.
18 Q Right, And did you sit down with Mr. O'Kelly and
19 get the details of what Mr. of what Brendan
20 had said with him any time prior to the interview
21 with Wiegert and Fassbender on the 13th?
22 A No.
23 Q Okay. Now, you did what what what
24 happened next? Tell me what happened next?
25 A We discussed when this would take place.
261
1 Q Okay.
2 A I told him I had a
3 Q Had you I'm sorry. Let me ,
4 A Sure.
5 Q interrupt for a second. Had you alerted
6 ATTORNEY FALLON*. Your Honor, I'm going
7 to object. You you can't ask a question, the
8 witness starts to answer, and then interrupt with
9 another question. He's got to wait for the
10 answer.
11 ATTORNEY DVORAK: I I'm sorry.
12 THE COURT: All right. Finish your answer.
13 THE WITNESS: Sure. I told him that ~
14 the ques question was when it.would be done.
15 He wanted to do it Saturday. I told him Saturday
16 would be a problem because I couldn't be there
17 'cause I had a prior military commitment with my
18 Army Reserve Unit that I thought was going to be
19 my last drill. Some important administrative
20 material to to take care of.
21 And, then, at some point he put Brendan
22 on the phone, and Brendan said I said the
23 alternative was to go Wednesday, when that was
24 the next available day I had without canceling
25 court appearances.
1 And, then, Bren he put Brendan on the
2 phone. Brendan said he wanted to do it now. He
3 didn't want to wait 'til, um, Wednesday. He
4 didn't want me there.
5 Um, and so I had some discussions with
6 Mr. O'Kelly that we needed to have a member of
7 the defense team present during this interview,
8 even though it was going be videotaped, and even
9 though it was basically a -- a proffer for for
10 plea negotiations, and that was there some way we
11 could work it out.
12 I'd have to be available by by phone
13 and he'd have to be there to monitor it:. We have
14 to do something if we're going to do it on
15 Saturday as opposed to waiting until Wednesday.
16 Q How long did this conversation last? Um okay.
17 ATTORNEY DVORAK: Judge, I would like to
18 play a a clip of that conversation. I think
19 that Mr. Kachinsky can at least authenticate
20 .whether or not it's an accurate rendition of what
21 the conversation was.
22 THE COURT: Okay.
23 ATTORNEY FALLON: From from which
24 conversation, Counsel?
25 ATTORNEY DVORAK: The conversation he's

1 just describing.
2 ATTORNEY FALLON: With Mr. O'Kelly?
3 ATTORNEY DVORAK: Yes. And with
4 Mr. O'Kelly as well as with Mr. with Brendan.
5 I think that's ten.
6 ATTORNEY FALLON: I'm sorry? What was
7 that again?
8 THE COURT: The exhibit number and the
9 clip? I take it there's a transcript in here?
10 ATTORNEY DVORAK: Speak up.
11 ATTORNEY NIRIDER: Sorry, Your Honor, r
12 The transcripts of what we're going to
13 (inaudible) is on Exhibit-315. I'll have the
14 page number for you in just a moment. And the
15 video that we'd like to play (inaudible) Exhibit
16 212 .
17 ATTORNEY FALLON: Exhibit 315.
18 ATTORNEY DVORAK: Judge, I think we'll
19 wait ; we'll wait and do it with Mr. O'Kelly.
20 THE COURT: Okay.
21 Q (By Attorney Dvorak) Now, what conversations did
22 you have with the prosecution prior to let me
23 back up a minute.
24 Um, the prosecution, State, knew that
25 you were going to go in and talk to Brendan on

1 May 12; right?
2 A I'm not sure if they knew or not. I mean
3 Q There was there was an e-mail that we
4 discussed earlier where Mr. O'Kelly was let
5 everybody know that this was going to happen on
6 May 12?
7 A Might have.
8 Q Remember that?
9 A Certainly he needed advance warning to the sheriff's
10 department to visit Brendan on a professional visit
11 level.
12 Q There's Exhibit 65. Would you review Exhibit 65
13 and see if that refreshes your recollection?
14 ATTORNEY DRIZIN: Judge, may I ask a
15 question? How long do you intend to go today?
16 Because, you know, I don't know whether it's a
17 good time to break now because I don't know if
18 the State's going to have enough time to finish
19 their cross.
20 THE COURT: Courthouse is supposed to close
21 at 4:30.
22 ATTORNEY DRIZIN: That's what I thought.
23 THE COURT: And I'm allowing this on
24 Mr. Dvorak's representation that he had not many
25 more questions. But one more day and I suppose I
265
1 should have asked Mr. Fallon or Mr. Kratz whether
2 they have a significant number of questions that
3 they think they will be asking?
4 ATTORNEY FALLON: Based on the Court's
5 preliminary rulings, I have lots of questions.
6 THE COURT: All right. Then, let us call
7 it a day.
8 ATTORNEY DVORAK: Can we get the answer
9 to the last question?
10 THE COURT: About
11 ATTORNEY DVORAK: Might as well finish
12 it up before
13 THE COURT: Okay. Sure.
14 THE WITNESS: Which number?
15 ATTORNEY FALLON: Exhibit 65.
16 ATTORNEY DVORAK: Sixty-five.
17 THE WITNESS: Okay. Thats what I have
18 in front of me. Yes.
19 Q (By Attorney Dvorak) Does that refresh your
20 recollection? Let me see if I can
21 A Right. The watch commander was notified.
22 Q And and
23 A Well, he had sent us (unintelligible)
24 Q (unintelligible) everybody was ccd on it
25 A He
1 Q correct?
2 A did, yes.
3 Q So everybody knew about it.
4 ATTORNEY DVORAK: Um, Judge, the, um
5 at this point we would move into exhibits that we
6 have referred to; 317, 55, 306, 319, 320, 3
7 ATTORNEY FALLON: Slow down.
8 Three-twenty.
9 ATTORNEY DVORAK: 360, 321, 4 -- 41,
10 322, 343 , 359, 323, 324, 325, 326, 347, 63, 350,
11 94, 328, 327, 64, 361, 338, 65, 339, 66, 329, 65
12 um, and Exhibit 337, which is a a an
13 exhibit summary of the media statements that we
14 referred to, and Exhibit 212, which is a a
15 summary a a video.
16 THE CLERK: I also had Exhibit 40.
17 ATTORNEY FALLON: That last one was
18 Exhibit 212?
20 THE COURT: Yes.
21 ATTORNEY DVORAK: And 315, which is
22 sum is a summary of the video transcripts.
23 The portions that anyhow that we played.
24 ATTORNEY FALLON: Um, do you want
25 argument? Or it might given the number of the

1 exhibits here I have some general comments. Most
2 of it I don't object to but I do have there
3 are cert some objections to some of the
4 material in the exhibits.
5 Most notably, the media reports and
6 the the interpretations by the members of the
7 media as to what they think Mr. Kachinsky may or
8 may not have meant, I object to that.
9 As to the parts of those exhibits
10 directly attributing comments to Mr. Kachinsky in
11 quotes, which he identified as, yes, I said that,
12 we have no objection to that.
13 But I object to the to the use of the
14 statements by the by the media, or their
15 connotations, interpretations, or whatever,
16 because they're irrelevant and immaterial. And
17 they're also well, arguably, hearsay. But...
18 THE COURT: Yeah. And I think in most
19 instances Mr. Kachinsky voiced his reservations
20 about those portions of those
21 ATTORNEY FALLON: He did.
22 THE COURT: media media releases that
23 he thought did not accurately reflect what he said
24 or even what was said.

1 THE COURT: And I understand that. I
2 understand your objection as well. I'm going to
3 receive them, but but I'm also going to I'm
4 also going to view them, if I have to, through
5 through the testimony of the witness
7 THE COURT: who was allegedly quoted.
8 ATTORNEY FALLON: All right. But I do,
9 then, have the only concerns remaining, then,
10 are these exhibit summaries, uh, 212, 337. I
11 don't think those have been identified, and I
12 don't know 'cause I haven't looked at them,
13 and examined thorn, and we haven't discussed
14 them I don't know if they include additional
15 matters not discussed at this time given that
16 they haven't concluded their direct examination
17 of Mr. Kachinsky.
18 ATTORNEY DVORAK That's
19 ATTORNEY FALLON So
20 ATTORNEY DVORAK fair, Judge.
21 ATTORNEY FALLON So I I ask you to
22 just take that those summary exhibits under
23 advisement until we have further discussions and
24 review.
25 THE COURT: Yeah. I I just looked at
:1.L.
1 317, I think it was, or
2 ATTORNEY FALLON: 337 and
3 THE COURT: 337.
4 ATTORNEY FALLON: 212 or something.
5 THE COURT: Almost looks like a a chart.
7 THE COURT: Sort of a Chapter 910 exhibit.
8 But I don't think Mr. Dvorak is asking at this point
9 to have them received today. Is that correct?
10 ATTORNEY DVORAK: Correct. That's
11 correct, Judge.
12 ATTORNEY FALLON: Okay. Then we'll just
13 hold that part in abeyance and thats fine.
14 ATTORNEY DVORAK: Right.
15 THE COURT: All right. Now, I think that
16 concludes the testimony today. Court will reconvene
17 at 8:30 on Tuesday morning. Court courtrooms are
18 not open on Monday morning next week. So any
19 questions?
20 THE CLERK: I just had one exhibit that
21 wasn't read that they referred to which was Exhibit
22 40. I don't know if that's
23 THE COURT: Well, let's clear that up.
24 ATTORNEY FALLON: It was a question
25 regarding Exhibit 40?
270
1 ATTORNEY DVORAK: I don't think I did.
2 Yeah. I may have mentioned it, Judge. I don't
3 know that I I presented it to
4 THE COURT: You may have mentioned that in
5 error. I recall you mentioning it, and looking at
6 it
8 THE COURT: and I don't think that's
9 what you meant to be talking about.
10 ATTORNEY FALLON: It was mentioned in
11 the questioning I remember now regarding a
12 news report. There were going to be some
13 questions on it. There may have been one but
14 then they.moved on to another topic.
15 So I'm not sure if they want Exhibit 40
16 in or not. It is what it is, as they say, in
17 terms of a media account.
18 THE COURT: Right.
19 ATTORNEY FALLON: I don't care.
20 ATTORNEY DRIZIN: Why don't we take that
21 up on Tuesday morning, Judge.
23 ATTORNEY DRIZIN: Thank you.
24 THE COURT: Anything else?
25 ATTORNEY FALLON: Could could we have

1 a little chat in chambers?
2 THE COURT: Sure. You may step down.
3 THE WITNESS: Thank you, Your Honor.
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1 STATE OF WISCONSIN )
)SS.
2 COUNTY OF MANITOWOC )
4 I, Jennifer K. Hau, Official Court
5 Reporter for Circuit Court Branch 3 and the State
6 of Wisconsin, do hereby certify that I reported
7 the foregoing matter and that the foregoing
8 transcript has been carefully prepared by me with
9 my computerized stenographic notes as taken by me
10 in machine shorthand, and by computer-assisted
11 transcription thereafter transcribed, and that it
12 is a true and correct transcript of the
13 proceedings had in said matter to the best of my
14 knowledge and ability.
15 Dated this day of 2010.
16
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Official Court Reporter
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(2010 01 15) - Post-Conviction Motion Hearing Day 1 PDF

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1 STATE OF WISCONSIN : CIRCUIT COURT : MANITOWOC COUNTY

11 Reported by Jennifer K. Hau, RPR

12 Official Court Reporter

9 Direct Examination by ATTORNEY DVORAK 112-267

11 (Exhibits were marked prior to the motion hearing.)

12 EXHIBITS MARKED MOVED ADMITTED

21 306 267 269

22 310 104 104

23 315 267 269

24 317 267 269

25 319 267 269

2 320 267 269

3 321 267 269

4 322 267 269

5 323 267 269

6 324 267 269

7 325. 267 269

9 327 267 269

10 328 267 269

11 329 267 269

13 338 104 & 267 104 & 269

14 339 267 269

15 343 104 & 267 104 & 269

16 344 104 104

17 347 267 269

18 350 267 269

19 356 104 104

20 359 267 269

21 360 267 269

22 361 267 269

2 Brendan Dassey. It's Case No. 2006 CF 88. It's

3 also Court of Appeals No. 2007 XX 1073.

4 Appearances. Starting with the prosecution.

5 ATTORNEY FALLON: Morning, Your Honor.

6 May it please the Court, State appears by Special

7 Prosecutors Tom Fallon from the Attorney

8 General's Office and Ken Kratz from the Calumet

9 County District Attorney's Office.

10 ATTORNEY DRIZIN: Good morning, Your

11 Honor. Is it okay if I introduce my team?

12 . THE COURT: Go ahead.

13 ATTORNEY DRIZIN: Okay. For the record,

14 on behalf of Mr. Brendan Dassey, I'm Steve

16 To my left is Laura Nirider,

18 Sitting at counsel table assisting with

19 the technology today is Alex Hess. He is a

20 third-year law student at Northwestern University

22 In the first row is Mr. Joshua Tepfer

23 T-e-p-f-e-r. He is a law professor at

25 Sitting next to Mr. Tepfer is Ms. Adar,

2 student at Northwestern University.

3 To her right is Mr. Thomas Geraghty. He

4 is a law professor and a director of the Bluhm

5 Legal Clinic at Northwestern Law School.

6 And behind me is Mr. Robert Dvorak who

7 is co-counsel with me on this case.

8 THE COURT: All right. Thank you. I'm

9 going to give a short introduction to the hearing

11 Uh, this is a case in which the

12 defendant, Brendan Dassey, was charged on

13 March 3, 2006 and before I forget, the record

14 will also reflect that Mr. Dassey is here

15 personally was charged on March 3, 2006, with